THE RIGHT TO FREEDOM OF EXPRESSION AND CRIMINAL LIBEL IN KENYA

By:

John Kenga Nyale

LL.B.(Hons) PGDL (2018)

CHAPTER ONE: INTRODUCTION 

This study seeks to examine whether criminal libel is consistent with the right to freedom of expression under the Constitution of Kenya promulgated on 27 August 2010.[1] The right is enshrined under article 33 and includes the freedom to seek, receive or impart information or ideas, freedom of artistic creativity, academic freedom[2] and freedom of academic research.[3] The right is not absolute and one of the grounds for limitation is that in exercising, it individuals have to respect the rights and reputations of others.[4]

The right to freedom of expression is fundamental and foundational to any democratic, progressive and civil society.[5] This means that the right is integral to the enjoyment of other rights for as Barak has argued “freedom of expression comprises a complex system of intertwined liberties and rights.”[6] According to Article 19, an organization dedicated to protecting and defending freedom of expression, the right “is not only important in its own right but is also essential if other human rights are to be achieved.”[7] This demonstrates that for Kenyans to be able to enjoy the rights enshrined in the Constitution, they have to first be able to express themselves freely. 

The right has a number of key features including that it applies to every citizen, unlimitedness in geographical territory, inclusive of the right to receive and impart all kinds of information, ideas and opinions through exchanging, sharing, discussing and disseminating them freely and that individuals have a right to a remedy when it is violated or threatened with violation.[8]

Criminal libel constitutes the unlawful publication of any defamatory material that exposes persons to hatred, contempt or ridicule or likely to injure them in their profession or trade by damaging their reputation.[9] Criminal libel is therefore premised on the ground that the society has an interest in the protection of individuals’ reputations hence the obligation on the state to prosecute those who injure or damage other peoples reputations as was held by the Constitutional Court of Uganda.[10] This study seeks to examine whether the protection of reputation by criminal libel is consistent with the right to freedom of expression, other rights and constitutional values and principles in Kenya. 

It follows that criminal libel is one of the means used for the purpose of protecting rights and reputations of others.[11] In so doing, one has to balance between the right to freedom of expression and the right to reputation and other rights of every person.[12]

The right to freedom of expression was integral in the quest for independence not only in Kenya[13] but across Africa.[14] This right, like that to self-determination and association were denied, abridged and violated as the colonial state was apprehensive of the Africans cause in general and that of Kenyans specifically in associating and expressing their grievances occasioned by the grabbing of their land and infringement of their basic human rights and fundamental freedoms.[15]

In particular, freedom of expression was subjected to numerous restraints as the colonial powers set out to divide and share Africa’s territory among them, some imposed by law and these limits were enhanced after independence instead of being repealed or abolished.[16] The colonial state enacted laws to forbid Africans from claiming for their rights. Such laws aimed at minimizing their movement, association and especially freedom to express their grievances. These laws included the Penal Code[17] which introduced the crime of criminal libel which was used to suppress leaders at the forefront of the struggle for liberation.[18] Ngugi has eloquently observed that the fight for independence from the British during the colonial period and the quest for a new Constitution in independent Kenya was juxtaposed with the fight for freedom of expression as laws such as the Penal Code enacted in the colonial era to suppress dissidence were retained by the post independence regimes and used for the same purpose as the clamour for change gathered momentum.[19]

1.1. BACKGROUND TO THE PROBLEM 

The promulgation of the Constitution of Kenya 2010 ushered in a new dawn for Kenya and Kenyans.[20] It contains a comprehensive bill of rights and freedoms.[21] One of these rights is the right to freedom of expression under article 33. This right is not absolute and one of its limitations is that in its exercise, respect is to be accorded to the rights and reputations of others.[22] The offence of criminal libel under the Penal Code which was introduced in the colonial period continues to be applicable today even though it was enacted with the intention of limiting, denying or violating rights and freedoms particularly the right to freedom of expression. Amendment or repeal of this provision is long overdue to align the Penal Code with the Constitution.[23]

Balule argues that argues that insult laws or desacato laws were introduced during the colonial period in Africa by the colonialists and have remained intact in most countries decades after colonial rule ended with the consequence that independent regimes have continued to use them to silence opponents and critics with impunity.[24] These laws which include criminal libel and seditious libel were imported into Africa with the aim of shielding public officers from criticism and maintenance of the public order as criticism of these officers was seen as capable of causing instability within a state.[25] Balule’s analysis applies to Kenya because there was no process undertaken for purposes of amendment or repeal of colonial legislation and that is why to date insult laws can still be found in statute books. After promulgating the Constitution, time is now ripe for Kenya to reexamine these laws such as the offence of criminal libel under the Penal Code to align them with the Constitution and its values and principles. 

1.2. STATEMENT OF THE PROBLEM 

The offence of criminal libel as enunciated under the Penal Code chapter XVIII has a chilling effect on the enjoyment of the right to freedom of expression under article 33 because as such, it is an offense against the public at large hence the use of state resources in the prosecution of offenders with the likelihood of imposition of criminal sanctions upon conviction.[26] To enhance enjoyment of the right therefore it has been argued that civil libel as provided under the Defamation Act[27] is the most appropriate mechanism for limitation of this right with regard to the protection of rights and reputations of others in a free and democratic society.[28]

Criminal sanctions for the offence of criminal libel including imprisonment has been held to be inimical to and to have a chilling effect on freedom of expression and that such sanctions should not be applied.[29] Civil libel laws have been held as adequate for the purpose of protecting the reputations of others.[30] As such criminal libel provision remains to be an unjustifiable restriction on the right to freedom of expression hence the need to examine whether it is time to alter, repeal or amend it to safeguard the right as Kenya has the Defamation Act which provides for civil libel.[31]

1.3. THEORETICAL FRAMEWORK 

The right to freedom of expression is anchored in natural law as the cornerstone of a free, transparent, civilized and progressive society hence it is natural, universal and inherent and is classified in the same category as the right to life, liberty and property.[32] As such the right is to be enjoyed by all human persons by virtue of being human. Where the need for its restriction arises, the same has to be for the common good of all citizens which may not be endangered or destroyed for the sake of an individual or a few individuals. 

Mill in arguing for importance of freedom of expression states that the right is not to be limited except where there is danger of imminent harm, injury or damage to other people.[33] This has come to be known as the harm principle and has been applied to mean that rights including freedom of expression can only be limited where there is danger of immediate harm to others. This principle was to later be applied and observed as the rationale for freedom of expression by Justice Holmes in America.[34]

John Locke argued that the purpose of people agreeing to unite and instituting a government was for preservation of their property which includes their lives, liberties and estates.[35] These liberties for instance freedom of expression are inherent and natural.[36] To avoid arbitrary abuse of power, laws enacted by the legislature must be based on the notion of equality and that they may not be varied so as to have ‘one rule for the rich and poor, for the favourite at Court, and the 

countryman at plough.’[37] Locke’s stance that laws must be made on the basis of equality for the good of all people is important to this study. Section 198 of the Penal Code gives absolute privilege to the president, members of the cabinet and members of parliament and that ‘it is immaterial for the purposes of this Chapter whether the matter be true or false, and whether it be or be not known or believed to be false, and whether it be or be not published in good faith.’ It is clear from this provision that the framers of the Penal Code had in mind rulers and subjects who are unequal in a situation such as was obtaining in Kenya during the colonial period. An argument can therefore be made that this provision is inconsistent with the right to equality and non discrimination under article 27. In a Lockean framework and given the potential for abuse, this provision is contrary to the equality doctrine and does not meet the threshold for limitation of rights. 

Alexander concludes that while he is a champion of freedom of expression, the grounds, scope and force of this right remain to be contestable.[38] This can be attributed to the fact that the right is not absolute and that it is the obligation of each state to prescribe and define the limitations in legislation without undermining enjoyment of this right by citizens. 

This study proceeds from position that human rights in general are indivisible, interrelated and interconnected.[39] This means that the enjoyment of one right enhances the enjoyment of other rights while the infringement of such a right is equally detrimental to the enjoyment of other rights and freedoms.[40] There is therefore need for the law to be clear, precise and explicit as regards a right that is not absolute such as the right to freedom of expression. In relation to the topic under study, it is germane to inquire whether there is any imminent danger of harm posed to an individual who is libeled given that there exists remedies under the provisions of civil libel law which are considered sufficient to remedy the injury to reputation. 

1.4. LITERATURE REVIEW 

Freedom of expression or speech has been recognized as a fundamental common law right.[41] It has been proclaimed as, “the freedom par excellence; for without it, no other freedom could survive.”[42] This illustrates its importance with respect to the enjoyment of other rights and freedoms under the Bill of Rights and in international legal instruments enacted to guarantee citizens their human rights. 

Winfield and Mendoza argue that criminal defamation laws in most states are in most instances abused to protect the powerful from scrutiny and criticism and that as result have a chilling effect on not only freedom of expression but also freedom of the media as citizens and journalists alike become restricted as to what they can debate, discuss or publish.[43] They therefore join a long list of authors, journalists and organization that have been advocating for the decriminalization of defamation.[44]

Makau Mutua, on his part, argues that the denial and abrogation of basic rights particularly the right to freedom of expression led to the quest for independence during the colonial era and a quest for constitutional change under the Kenyatta and Moi regimes.[45] He notes that basic rights were denied through the imposition of harsh pieces of legislation and amendment to the independent Constitution that effectively disfigured its original character leading to massive violations of human rights.[46] This galvanized individual citizens, the civil society and academics to demand a new constitutional dispensation that would protect the rights of everyone regardless of status, affiliation or religion.[47]

Chief Justice French in Monis v The Queen declared that, “freedom of speech is a common law freedom. It embraces freedom of communication concerning government and political matters. The common law has always attached a high value to the freedom and particularly in relation to the expression of concerns about government or political matters.”[48] The right therefore enhances debate and discussion amongst citizens and between them and their elected, nominated or appointed representatives on issues of their concern including governance, corruption and foreign debt. 

Barendt has argued that the right is integral to self-development and personal fulfillment.[49] He further states that this right is “closely linked to other fundamental freedoms which reflect... what it is to be human: freedoms of religion, thought, and conscience.”[50] The right is therefore interlinked to other constitutional rights and freedoms. 

Consequently the right serves various purposes including promoting self-fulfillment of individuals, encourages the attainment of truth through the exchange of ideas and facilitates in the exposure of errors in governance and administration of justice.[51]

The right is not absolute and may be limited on grounds including the protection of reputations of individuals from harm occasioned by publication and dissemination of false information to third parties.[52]

1.5. OBJECTIVES OF THE RESEARCH 

This study seeks to accomplish the following objectives: 

1. To examine whether the offence of criminal libel under the Penal Code is unconstitutional for violating the right to freedom of expression under article 33, other rights and constitutional principles. 

2. To assess the place of criminal libel in international and regional human rights law. 

3. To demonstrate how criminal libel has been applied in Kenya in the past. 

1.6. STRUCTURE AND ASSUMPTIONS 

STRUCTURE 

Chapter XVIII of the Penal Code appears to be inconsistent with the right to freedom of expression provided under article 33 of the Constitution with regards to limitation of the right on the ground of protection of the reputations of others. The courts therefore have to interpret these provisions in a manner that is consistent with the Constitution pending their amendment or repeal by the Legislature. Before Parliament does that, the provisions remain effective and applicable hence the argument that the courts have to guard the right to freedom of expression by interpreting them as required by the Constitution. 

ASSUMPTIONS 

This study proceeds on the basis of the following assumptions; 

1. The right to freedom of expression is integral to the enjoyment of other rights and freedoms. 

2. Criminal libel is inconsistent with the right to freedom of expression. 

1.7 RESEARCH QUESTIONS 

This study seeks to answer the following questions; 

1. What is entailed by the right to freedom of expression? 

2. What constitutes criminal libel? 

3. Whether criminal libel is inconsistent with the right to freedom of expression? 

1.8. RESEARCH METHODOLOGY 

Data for this study will mainly be collected from library research and internet searches touching on the subject topic. Textbooks, journals and articles on the subject will be of primary importance as will be case laws from Kenya and other jurisdictions. Important also will be global and regional treaties, charters, conventions, protocols and declarations in the field of human rights on the right to freedom of expression and its limitation on the basis of protection of the reputations of others. Magazines, newspaper reports and journals will also be used. The survey of primary and secondary sources of literature will be mainly done by desktop research through the review of scholarly contributions on freedom of expression and criminal libel. 

1.9. ORGANIZATION OF CHAPTERS 

This study is divided into four chapters that present an examination of whether the offence of criminal libel under the Penal Code is consistent with the right to freedom of expression under the Constitution, other rights and constitutional principles. 

CHAPTER 1: INTRODUCTION 

The first chapter defines the problem under study by briefly discussing the right to freedom of expression and the offence of criminal libel. It also provides the theoretical underpinnings of freedom of expression and the basis for its limitation as a way of protecting the reputation of others. 

CHAPTER 2: AN ANALYSIS OF THE RIGHT FREEDOM OF EXPRESSION 

This chapter provides an analysis of the right to freedom of expression its nature, scope and limitations. It will also discuss its relevance in the life of individual citizens and in the democratic process and in the interaction between the state and the citizen. Besides, the rationale of the right as crucial in protecting citizens liberty to communicate with others, share and exchange ideas to generate options for their own good will also be examined. 

CHAPTER 3: CRIMINAL LIBEL IN KENYA 

This chapter provides an analysis of the offence of criminal libel as defined under the Penal Code and whether it meets the threshold for limitation of rights as enshrined under article 24 of the Constitution and whether it is consistent with other rights and Constitutional principles. CHAPTER 4: CONCLUSION 

This chapter provides a summary of the findings of this study and gives recommendations on the way forward with respect to enjoyment of the right to freedom of expression and its conflict with the offence of criminal libel. 

CHAPTER TWO: AN ANALYSIS OF THE RIGHT TO FREEDOM OF EXPRESSION 

2.1. INTRODUCTION 

This chapter presents an analysis of the right to freedom of expression with a focus on its nature, scope, and limitations. These will be discussed in light of international and regional human rights instruments and the decisions and declarations of the bodies, courts and committees established to monitor their implementation. The decisions of national courts will also be employed for purposes of illustrating how different authorities have contributed to freedom of expression jurisprudence. 

2.2. THE NATURE OF THE RIGHT TO FREEDOM OF EXPRESSION 

It has been recognized that ‘there is a right to freedom of expression under customary international law.’[53] This is on the premise that the right to freedom of expression is included in various international human rights instruments and in the constitutions of many states and has received interpretation at the international, regional and domestic level. The international and regional human rights instruments which recognize this right include the Universal Declaration of Human Rights (UNDHR);[54] the Convention on the Elimination of all Forms of Racial Discrimination (CERD);[55] the International Covenant on Civil and Political Rights (ICCPR);[56] the African Charter on Human and Peoples Rights (ACHPR);[57] the American Convention on Human Rights (ACHR);[58] and the European Convention on for the Protection of Human Rights and Fundamental Freedoms (the ECHR).[59]

Besides political speech, the right to freedom of expression is inclusive of freedom of artistic creativity.[60] As the rapporteur observed ‘the vitality of artistic creativity is necessary for the development of vibrant cultures and the functioning of democratic societies. Artistic expressions and creations are an integral part of cultural life, which entails contesting meanings and revisiting culturally inherited ideas and concepts. The crucial task of implementation of universal human rights norms is to prevent the arbitrary privileging of certain perspectives on account of their traditional authority, institutional or economic power, or demographic supremacy in society. This principle lies at the heart of every issue raised in the debate over the right to freedom of artistic expression and creativity and possible limitations on that right.’[61] This observation shows that freedom of artistic expression and creativity is fundamental to the protection and preservation of cultural and indigenous values of a particular society.[62] Furthermore like the right to freedom of expression it is not absolute and may be restricted to prevent its arbitrary abuse. 

Academic freedom and freedom of academic research is also part and parcel of right to freedom of expression. Academic freedom is defined as the freedom of lecturers, tutors, teachers, students and learning institutions to pursue knowledge and ideas wherever it may lead without undue and unreasonable restriction or limitation.[63] Academic freedom is interlinked to freedom of academic research as the former involves a number of activities including knowledge production and presentation of research findings which fall under the latter. Academic freedom in Sweezy v. New Hampshire, [64]Justice Frankfurter in the American Supreme Court held that ‘it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’ This holding as regards academic freedom was followed in Regents of the University of California v. Bakke.[65] It follows that the academy should be free in the enjoyment of these ‘four essential freedoms’ constitutive of academic freedom and freedom of academic research without unreasonable, arbitrary and illegal restriction to achieve its goal of producing and imparting knowledge. 

The right to freedom of expression is not only useful for democracy in society for the exercise of political rights and choice and also for production, presentation and publication of knowledge in the academy as academic freedom and freedom of academic research and but also as freedom of artistic creativity at the theatre. 

In Media Rights Agenda and Constitutional Rights Project v. Nigeria,[66] the African Commission on Human and Peoples Rights (African Commission) declared that the right to freedom of expression is a basic and fundamental human right essential for individual personal development, political consciousness and participation and contribution in the conduct of public affairs in a country.[67] For citizens to be able to participate meaningfully in the political process, they need to be free to discuss the policies and ideologies of different candidates so as to be able to make the best choice. When citizens cast their votes, they are expressing their will as to whom and what they want for themselves and their country.[68]

Freedom of expression is not an absolute right and is limited by these instruments which provide for it. For instance the CERD bans all forms of expression that can result in discrimination[69] while the ICCPR forbids propaganda for war and advocacy of national, racial or religious hatred that encompasses incitement to discrimination, hostility or violence.[70]

The right to freedom of expression is contained under article 33 of the Constitution of Kenya which declares that ‘every person has the right to freedom of expression which is inclusive of freedom to seek, receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of academic research.’ The right however, does not ‘extend to propaganda for war, incitement to violence, hate speech and advocacy of hatred constitutive of ethnic incitement, vilification of others,[71] or incitement to cause harm or is based on any ground of discrimination contemplated under article 27(4).’ Most importantly, the right is to be exercised with respect to the rights and reputation of others. The rights referred to here are the other constitutional rights to which every citizen is entitled as provided under the Constitution and in international and regional human rights instruments. 

In Reynolds v. Times Newspapers Ltd,[72] Lord Nicholls of Birkenhead observed that protection of reputation is important because ‘reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society as well as the individual is the loser.’[73] This statement shows that all citizens are entitled to their good names in the community and that the blemishing of one’s name is an affront on their human dignity for which they deserve protection. Consequently, defamation laws are enacted for this purpose.[74]

In their enjoyment of the right to freedom of expression, citizens have to ensure that they do not infringe on the rights of others nor injure their reputations ‘in the estimation of right thinking members of society generally.’[75]

The limited nature of this right can therefore be explained in the words of Lord Donaldson in AG v. Guardian Newspapers (No 2)[76] decided by the House of Lords that ‘the starting point of our domestic law is that every citizen has a right to do what he likes unless restrained by the common law or by statute.’ The requirement for its limitation by law is necessary because society embraces other values and principles that need to be safeguarded in order to protect individual citizens and the whole society at large.[77] Furthermore, Lord Bridge in the House of Lords in R v Secretary of State for the Home Department, ex parte Brind[78] held that most rights including the right to freedom of expression is not absolute on the basis of competing public interests that necessitate its limitation. 

2.3. THE RIGHT TO FREEDOM OF EXPRESSION JUSTIFICATIONS 

Proponents of the right to freedom of expression base their argument on the basis that the right is instrumental and contributes to the existence of a desirable state of affairs and also that it has an intrinsic value.[79] Consequently freedom of expression is valued because it is vital for democracy, attainment of truth and independence/autonomy of the individual to make choices. These will be discussed in turn to provide for the rationale for the right to freedom of expression. 

2.4 DEMOCRACY 

In a constitutional democracy such as Kenya the right to freedom of expression is considered quintessential in enabling the citizens to obtain the necessary information to assist them in making choices and participate in debates and deliberations on issues of their concern as equal members of society.[80] Meiklejohn emphasized that the of the right to freedom to express ones views was necessary for citizens as voters to articulate on matters of public concern before making a choice.[81] Hence all citizens are to have wide latitude in informing themselves and forming opinions on what is the best for them. In that setting the rights, needs and interests of minority groups are also taken care of or as they also have an equal chance of expressing their views on decisions of the majority.[82] Heyman, argues that the right to freedom of expression is paramount for individual self-determination and self-realization, democratic government and governance and necessitates the attainment of truth and is closely linked to other rights including the right to personal security, freedom of opinion, the right to privacy and the right to be treated with dignity.[83] The right to freedom of expression enables the citizens, as self determining individuals, to express themselves by choosing leaders of their choice and holding them accountable for their actions and inactions.[84] The importance of the right to freedom of expression for democracy has been recognized by various courts and monitoring bodies. These include the he Inter-American Court of Human Rights which has stated that ‘freedom of expression is a cornerstone upon which the very existence of a democratic society rests’,[85] the United Nations Human Rights Committee which has held that ‘the right to freedom of expression is of paramount importance in any democratic society’[86] and the European Court of Human Rights has observed that ‘freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.’[87] This recognition demonstrates that indeed the right to freedom of expression is integral to democracy and democratic governance. 

The Constitutional Chamber of the Supreme Court of Justice of Costa Rica on the essence of freedom of expression to democracy held that ‘the opportunity for all people to participate in public debate constitutes a necessary condition for the construction of a social dynamic of exchange of knowledge, ideas and information that allows for the reaching of consensus and taking of decisions among components of diverse social groups; but it also constitutes a channel for the expression of dissenting opinions, which in a democracy are just as necessary as concurring opinions.’[88] The right is therefore indispensable to the exchange of opinions in a democratic society to accommodate the interests of all people. 

Closer home, the African Commission in Liesbeth Zegveld and Messie Ephrem v. Eritrea,[89] also 

affirmed that the right to freedom of expression is indeed a cornerstone of democracy as well as the 

means of guaranteeing respect for all other human rights and freedoms. In Kenya, the High Court in 

Geoffrey Andare v Attorney General and 2 others,[90] Justice Ngugi stated that ‘freedom of 

expression is an essential right, important for the enjoyment of other rights, and for a democratic 

society to thrive.’[91] The importance of the right to freedom of expression to democracy is therefore one of its vital features and has been affirmed as such around the globe.

2.5. TRUTH 

Attainment of truth is possible where exchange of all ideas and information is free and unrestricted.[92] John Milton in Aeropagitica justified the importance of freedom of expression as expression of his abhorrence against the monarchical system that demanded prior approval and license for all books before publication.[93] In Abrams v. United States Justice Holmes stated that ‘the best of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out.’[94] Holmes therefore like Milton and J.S. Mill before him believed that truth was a paramount social good and in its quest people have to be free to express themselves in the marketplace of ideas without any restrictions. Further, expression needed to be limited in the event that there was danger of imminent harm to others, their property and rights.[95] According to J.S. Mill, truth is achieved when there is freedom for people to debate and discuss all ideas including those which are unpopular at the time.[96] Hence truth is livelier when it clashes with error and this requires that people are free to express themselves. 

There has to be wide latitude for expression of all ideas and information including those which challenge conventional wisdom and may at first appears irrational, shocking, offensive and annoying for from that exchange, the truth may still emerge.[97] Consequently as held by Justice Brennan ‘debate on public issues should be uninhibited, robust, and wide-open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’[98] The High Court in Kenya also affirmed the importance of truth in Amrital Bhagwanji Shah –Vs- The Standard Limited & Another,[99] when it held that ‘we must also cherish the truth, for freedom cannot thrive in an atmosphere of irresponsible journalism, lies, ridicule, bias or propaganda and scandalous atrocities.’ In enjoying the right therefore, citizens should not besmirch others names and character without the justification of truth. 

2.6. AUTONOMY 

Freedom of expression is also justified as an intrinsic value that enables individuals to form opinions and choose from various options their own course of action.[100] This justification argues that the right is an intrinsic value hence individuals should be free to express themselves without inhibitions as a manifestation of their personhood. This justification also sees individuals as capable of using their faculties to form their own judgments of what is vital to them and therefore the imposition of restrictions on free expression interferes with their personhood and sovereignty.[101] The right to ‘freedom of expression’ enhances personal autonomy because it ‘permits the exercise of fundamental creative capacities and therefore nurtures self-respect and autonomous self-determination’[102] Scanlon defends the Millian view of liberty that people are free and independent with rational capacities which can be manifested when they are allowed to express themselves freely.[103] Emerson recognizes that freedom of association is properly exercised when autonomous individuals are free to convince others to espouse their ideas and ideals and in that manner association becomes expression in its own right.[104] Hence by association people give strength to the position that they choose to take on an issue. 

Other justifications about the right include accommodation of diverse interests and maintenance of social stability, exposure and deterrence of misuse and abuses of power, promotion and enhancement of tolerance and recognition of the dignity and equality of all citizens.[105] It follows that apart from freedom expression enhancing communication and exchange of information, it ensures that minorities and the marginalized also have an outlet for voicing their concerns and interests, that public officers and agencies are kept in check to prevent abuse and that the humanity of everyone is recognized and appreciated through this freedom. 

This discussion shows that the justifications are interlinked and that freedom of expression is fundamental to individuals and for the society as a whole. 

2.7. THE RIGHT TO FREEDOM OF EXPRESSION LIMITATIONS 

The right to freedom of expression, the foregoing shows lies at the heart of any democratic society for purposes of enhancing personal autonomy and self-realization of citizens and in the quest for what is true or certain by exercising choice. It is however, not absolute and there are standards established by international jurisprudence that have to be complied with whenever the state seeks to impose restrictions which have to be for the sake of other public rights and interests. In relation to public interest, Lord Denning stated that ‘whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment’ in London Artists Ltd v. Littler.[106] The right to freedom of expression is therefore to be limited where matters of public interest outweigh exercise and enjoyment of the right. 

Before embarking on an examination of the parameters for limitation of human rights such as the right to freedom of expression, it is important to briefly explain why some of these interests including the following override the exercise of the right; 

2.8. WAR PROPAGANDA 

The right to freedom of expression does not extend to propaganda for war for the reason that this can incite people to fight or otherwise harm others thereby destroying the fabric on which society is anchored.[107] The restriction on propaganda for war is based on the fact that history is replete with examples of how propaganda has actually resulted in war with the consequence that lives, livelihoods and property were destroyed. These include the propaganda spewed against the Jews in Germany[108] and how propaganda contributed to the genocide in Rwanda pitting the Hutu and the Tutsi.[109]

2.9. INCITEMENT TO VIOLENCE AND ADVOCACY OF HATRED 

There is a norm in customary international law that incitement and advocacy of national, religious, racial and ethnic hatred is prohibited, giving states an obligation to enact laws that give effect to this duty.[110] In Brandenburg v Ohio it was held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.[111] The state is therefore justified in limiting the right to freedom of expression where condoning inflammatory expression threatens to cause illegal action. Restriction of freedom of expression has the object of protecting other rights from violation including the right to equality and non discrimination.[112] Limitation of the right is further underscored by the upsurge in terrorist activities and media technologies that has enabled people to easily communicate and exchange ideas around the globe with a lot of ease.[113]

2.10. HATE SPEECH 

Hate speech as a limitation on the right to freedom of expression is closely related to incitement to violence. Hate speech is prohibited because of its propensity to undermine other fundamental rights and freedoms such as the right to dignity and the right to be recognized as a person.[114] As a preventive mechanism, the state may therefore legally forbid speech that incenses individuals and communities to hatred towards each other to forestall any harm that may occur as a consequence. 

2.11. PROTECTION OF REPUTATION AND RIGHTS OF OTHERS 

Defamation laws are used by states to protect reputations of individuals and also prevent unlawful publication and dissemination of falsehoods against them.[115] Protection of reputation is recognized as a legitimate ground for limitation of the right to freedom of expression and is given effect in the same instruments that guarantee the right. For example, the ICCPR provides that state may restrict the right as provided by law and necessary for the protection of the rights and reputations of others.[116]

In Chirau Ali Mwakwere v. Robert M. Mabera & 4 Others,[117] Justice Majanja held that ‘because of the deleterious effects of propaganda for war, incitement to violence, hate speech and advocacy for hatred, which I have referred to at paragraph 33 above, the State has an interest and indeed an obligation to impose sanctions on such conduct through criminal law.’[118] This was recognition of the duty of the state under national law and international law to sanction speech that extends to these and prevent the harmful effects that they have on society 

2.12. PARAMETERS FOR LIMITATION 

After giving an explanation on why some interests legitimately permit limitation of the right to freedom of expression, the discussion turns to consider the parameters which the limitations must abide by in order for the limitations to be valid. These parameters can be deduced from jurisprudence of courts and monitoring bodies that have pronounced themselves not only on why the right if fundamental in a democratic society but also on why it is paramount in some instances to limit it for the purpose of ensuring its survival and take care of other competing rights, values and interests. 

The parameters for limitation have been held to be enunciated under the proportionality principle which states that limitations to freedom of expression must be more than suitable and necessary besides that they must be strictly proportional to the legitimate aim that justifies them and that they must strictly set out to achieve that aim by interfering as little as possible with the legitimate exercise of that freedom.[119] The Inter-American Court in so holding further stated that restrictions are to be evaluated on the following criteria; the degree to which a right is affected, the importance of protecting the other right and whether protecting that right justifies the restriction of freedom of expression.[120] The Supreme Court of Canada in R v.Oakes,[121] embraced this principle when it held that the test requires that the measures for restriction must be fair and not arbitrary designed properly to attain the objective in question and rationally connected to that objective and that the means should impair the right in question as little as possible and that it has to be proportional to objective. 

The proportionality principle has over the years gained prominence around the world and it is used by judicial bodies to balance different rights to define their proper limitations.[122] It now seen as ‘a central feature of rights adjudication in liberal democracies worldwide’[123] and also held as a ‘universal criterion of constitutionality.’[124]

The principle is therefore important in determining the constitutionality and legality of restrictions on fundamental rights and freedoms as demonstrated by its wide acceptance globally. The Kenyan High Court in Coalition for Reforms and Democracy (CORD) & 2 others v. Republic of Kenya & Another,[125] the CORD case, it was held that the principle finds expression in the Constitution under article 24 on considering the constitutionality of limitations on fundamental rights and freedoms.[126] The principle was further held to have three components which are that the limitation has to be prescribed by law, proportional to the objective sought to be achieved and that it should not be arbitrary, unreasonable or irrational.[127]

The discussion now turns to look at each of the components of the proportionality principle as explained below: 

2.13. PRESCRIBED BY LAW 

This means that for the state restriction to be justifiable and acceptable, the impugned act, omission or conduct must be laid down under law. The Johannesburg Principles provide that ‘the law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful and provide for adequate safeguards against abuse, including prompt, full and effective judicial scrutiny of the validity of the restriction by an independent court or tribunal.’[128] Affected parties have the right to have any restriction imposed have its validity determined by an independent and impartial court. Hence the judiciary in a democratic society has to be accessible to the citizens and expeditious in disposal of such matters to prevent abuse and arbitrariness of the state and state organs. The phrase ‘prescribed by law’ has been held to mean that ‘the impugned measure should have some basis in domestic law accessible to the person concerned, who must moreover be able to foresee its consequences.’[129] This means that the persons likely to be affected by the limitation must be able to familiarize themselves with the law to be able to regulate their conduct accordingly and be able to foresee the consequences.[130] In Hashman and Harrup v. the United Kingdom, the court held that the crime against good morals was inadequately defined as to meet the threshold of being prescribed by law and stated that such a law must be ‘formulated with sufficient precision to enable the citizen to regulate his conduct.’[131] Flowing from this jurisprudence, to limit the right to freedom of expression, the state has to enact a law purposely to achieve that end besides ensuring that it is clear and precise to meet this standard. 

In Grayned v. City of Rockford, the American Supreme Court emphasized that laws should enable ordinary citizens a reasonable chance to understand what is forbidden to enable them act as required.[132]

The Siracusa Principles declare that ‘no limitation on the exercise of human rights shall be made unless provided for by national law of general application which is consistent with the Covenant and is in force at the time the limitation is applied.’[133] It therefore follows that such limitations should not be arbitrary or unreasonable as to be violative of other fundamental rights and freedoms. 

2.14. NECESSARY IN A DEMOCRATIC SOCIETY 

This means that for the limitation to be legitimate, it must be in pursuit of a social need or interest that outweighs the right to freedom of expression and that the limit must be proportionate to the aim sought to be achieved.[134] In that respect, the law should not be overbroad, vague or ambiguous. The courts have a duty to examine ‘the reasons given by the national authorities to justify the interference are relevant and sufficient.’[135]

In Weber v. Switzerland, it was unanimously held that the imposition of a fine on Mr. Weber for having breached, at a press conference, the confidentiality of a judicial inquiry was not “necessary” for the protection and impartiality of the judiciary because the information had already been revealed at a press conference previously.[136] In instances where the government is seeking to have any information not to be revealed, prevention of disclosure is not necessary in a democratic society if the information in issue is already within the public domain and is public knowledge.[137]

2.15. PURSUIT OF A LEGITIMATE AIM 

The objective for which the law seeks to limit the right to freedom of expression must be genuine and conform to established standards and constitutional values and principles. Legitimate aims may include preservation of national security which in AG v. Guardian Newspapers Ltd,[138] was held as a proper ground for limiting the right to freedom of expression besides inflammatory speech.[139]

The African Commission in Constitutional Rights Project, Civil Liberties Organization and Media Rights Agenda v. Nigeria,[140] expressed the view that the rights under the ACHPR including the right to freedom of expression encapsulated under Article 9 can only be limited under Article 27(2) with due respect to the rights of others, collective security, morality and common interest in a manner that is justifiable and that the limitations are proportionate to the purpose pursued without abrogating the right in issue.[141] Limitations on the right therefore should not erode the essence of the right sought to be limited. 

To be legitimate restrictions on the right to freedom of expression and information must be established by law, seek the protection of one of the interests or rights protected by law and meet the standards of reasonableness and proportionality.[142] This shows that for limitations to be legitimate they have to be seeking protection of other rights and interests recognized by national law and international law that is binding on a state. 

2.16. CONCLUSION 

In conclusion, this chapter has examined the nature, scope and limitations of the right to freedom of expression. It has shown that the right is fundamental in a democratic society for the purpose of enhancing individual autonomy of the citizens and in their quest for truth. The right is also not absolute and may be limited to protect other rights and interests. The ICCPR states that the right to freedom of expression can also be limited ‘for respect of the rights or reputations of others and for the protection of national security or of public order, or of public health or morals.’[143] Under the Constitution of Kenya, the right does not extend to war propaganda, hate speech and advocacy of hatred and incitement to violence. The state can also limit it to protect the reputations and rights of others. These standards include that any limitation pursued must be prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society which are components of the proportionality principle which has gained global acceptance as the standard for limitation of constitutional rights. 

CHAPTER THREE: CRIMINAL LIBEL IN KENYA 

3.1: INTRODUCTION 

This chapter presents an analysis of the offence of criminal libel, its nature and origin. It will also discuss whether the provisions of the offence meet the threshold required for limitation of the right to freedom of expression, that is whether it is prescribed by law and whether the there is a legitimate aim for its limitation that is proportional to the objective the law seeks to achieve that is necessary and justifiable in an open and democratic society. It will present an explanation as to whether the provisions of the offence meet the standards and are within the parameters of the proportionality principle. This principle was discussed in the previous chapter. It will then delve into a discussion of why public figures should not be accorded special privileges and why truth should be a complete defence that discharges an accused person from any liability. 

3.2: NATURE AND ORIGIN OF CRIMINAL LIBEL 

Criminal libel laws seek to punish ‘malicious libel that is designed to expose a person to hatred, contempt, or ridicule and that may subject the author to criminal sanctions.’[144] It traces its origin in ancient Babylonia[145] and its applicability in Kenya is traceable directly to English common law which Kenya inherited from the British at independence.[146] William Blackstone asserted that criminal libel laws focused on unlawfulness of ‘malicious defamations of any person … made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule. The direct tendency of these libels is the breach of the public peace, by stirring up the objects of them to revenge, and perhaps to bloodshed.’[147] This assertion shows that the offence under common law involved the communication through various media of malicious statements to members of the public with the effect that they stirred anger, or exposed another to revulsion, disdain and calumny. Disparagements of members of the ruling elite class were taken to be erosive of power and authority and therefore the law punished libel as an injury to the society at large.[148] It is not difficult to notice that the offence served to safeguard the interests of the propertied and powerful in society with the consequence that it could be arbitrarily applied to silence legitimate criticism of government as people became cautious and censored whatever they communicated within the public domain. The heavy punishments for the offence were sufficient to make even the harshest of critics to hold their tongues and leave the government with a free hand to rule without question.[149]

The offence is applicable by virtue of provisions of the Penal Code and section 3(c) of the Judicature Act which provides for the application of the substance of common law in Kenya. This means that in enforcing the offence, the courts rely on provisions, first of the Penal Code and secondly judicial decisions in England. 

Criminal libel under common law constituted four offences: seditious libel, blasphemy, obscenity and defamation.[150] Seditious libel was made a criminal offence to prevent the publication of scandalous and critical views against the crown by the printing press in the seventeenth century.[151] The purpose of the offence was to safeguard the government and its officers from defamatory publications. Criticism of the crown was taken to be inimical to the good order and peace of the realm hence was harshly punished. 

Blasphemy which was defined as an offence against deity was also part of the criminal libel. In Updegraph v. Commonwealth,[152] the Pennsylvania Supreme Court reversed a conviction for blasphemy against the deity, attacks on Christianity for the purpose of exposing its doctrines to ridicule and contempt. It was indictable and punishable as a temporal offence. Attacks that resulted in provocation of ridicule and contempt against Christianity and its doctrines were punished as blasphemy. 

Obscenity was first enunciated in Dominus Rex v. Curl,[153] when the Court of King’s Bench declared that it was illegal to publish material that was ‘objectionable solely because of its offensive sexual content.’[154] The publication material of immoral sexual content as defined by the crown was therefore punished as an offence against it. 

Criminal libel or defamation which is the focus of this study sought to punish those who spread false ‘news’ against the crown or the great men of the kingdom.[155] In 1605, the Court of Star Chamber began to criminalize libel against individuals.[156] The rationale given for this was that irrespective of actual harm to the reputation of the offended, criminal libel was to be penalized for the defamed or their friends would cause a breach of the peace if they decided to revenge on the offender. 

The common law offence of criminal libel found its way into many African countries during the colonial period and was employed to foster respect for the colonial state and its officers.[157] The indigenous population was denied the right to air out their grievances as force was ruthlessly used silence them during the conquest and subsequently criminal libel provisions were used as a tool to rubberstamp the imperialism and subjugation of communities. Post independent regimes did not at the earliest opportunity amend or repeal them and were at times used by the incumbents to ward off criticism and silence opposition that posed a threat to them.[158]

3.3: WHETHER CRIMINAL LIBEL VIOLATES FREEDOM OF EXPRESSION 

The discussion now turns to examine the offence of criminal libel as provided for under the Penal Code to show whether it undermines the right to freedom of expression and why its continued presence in the statute books poses a threat to the right. The discussion will then proceed to analyze the offence to show whether it meets the threshold of the proportionality principle as a proper and legitimate limitation of the right to freedom of expression. 

As Ngugi has demonstrated, African voices critical of the colonial state and later the post independent regimes of Kenyatta and Moi, enforced criminal libel provisions to silence critical and independent voices making a case for freedom and expansion of the democratic space in the country.[159] In particular he writes that, ‘criminal libel, an archaic law that was still in the Penal Code, was also discovered by the government and used against its critics, particularly those in the media. Jonah Mwangi Wandeto, a journalist with The People, was arrested on March 8, 1999, for publishing a story that stated that bandits had held up the Presidential escort. Another journalist from The People, Mohammed Sheikh, was arrested for publishing an alarming article, and the Editor of The Dispatch, Maneno Mwikwabe, was also similarly charged for articles he had written in 1998. The MP for Kwanza, Mr. George Kapten, was charged with criminal libel for defaming a government official when he alleged in an interview published in the Finance Magazine that President Moi was implicated in the Goldenberg scandal. Although he was released on bail, he died suddenly at his home on Christmas Day in 1999. Criminal libel was still being used in 2002 by the government to intimidate pro-opposition press.’[160]

Ngugi’s assertion demonstrates at least two things. The first one is that criminal libel provisions inherited from the British were used mostly against journalists who increasingly became susceptible to arrests and detention for publication of matters critical of the government. The second one is that besides journalists, opposition leaders who voiced their dissatisfaction with the incumbent government and its policies also faced intimidation and threats. 

Other incidences of the use of criminal libel provisions to deal with harsh criticism include the arraignment in court of Mr. Njehu Gatabaki, on charges including criminal defamation of the president.[161] Gatabaki was an opposition member of Parliament and the editor in chief of the Finance Magazine. He had in December 1997 published an article in the magazine, entitled ‘Moi ordered the Molo massacre’ which linked President Moi to the ethnic violence that rocked some parts of the Rift Valley before, during and after the 1992 elections.[162] He was convicted and sentenced to six months imprisonment without the option of a fine. The Magistrate noted that the article amounted to ‘irresponsible and alarming journalism" that "should and must be discouraged’. He was later released by presidential pardon. 

Another incidence is that of Kamau Ngotho, then working for the Standard Newspaper who was charged with criminal libel for a story he had published alleging corruption and political patronage in the government.[163] The case was subsequently discontinued following the intervention of the Attorney General then, Amos Wako. 

These examples demonstrate that the media and citizens were limited in the enjoyment of the right to freedom of expression because they could not publish whatever information they had because in so doing, they risked arrest and detention for reports that fell out of favour with the government and its officers. This was just one of the intimidation and threats to their profession and livelihood they had to consider before publication. It can therefore be concluded that the use of the criminal libel provisions in the Penal Code had a chilling effect on freedom of expression because there was information that while it may have been of public importance, was not communicated as such because of the risks that lurked from the state.[164]

The discussion will now turn to the analysis of the provisions of the in the Penal Code on criminal libel in light of the proportionality principle to determine whether it meets the standard of constitutionality of limiting fundamental rights and freedoms. 

The proportionality principle has three components as explained in the previous chapter: that is any restriction must be prescribed by law, has to be in pursuit of a legitimate aim and that it has to proportional to the objective and necessary and justifiable in an open and democratic society having a minimal impairment on the right. 

It is noteworthy that the Declaration of Principles on Freedom of Expression in Africa embraces the components of the proportionality principle[165] and that the African Commission passed a resolution calling on ‘states Parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments.’[166]

The Special Rapporteur on Freedom of Expression and Access to Information also observed that criminal libel provisions were an impediment to freedom of expression and called on state parties to review their criminal laws providing for the offence.[167]

The first component to be examined is whether it is prescribed by law. The phrase ‘prescribed by law’ means that any limitation on a right has to be laid down in law and that it should be clear as to inform those likely to be affected by it so that they can act accordingly.[168] The consequences of the law must be reasonably foreseeable and this suggests that the law has to be accessible to the people and institutions that are susceptible to be affected by it. 

In Altug Taner Akcam v Turkey,[169] the European Court of Human rights held that there had been an infringement of article 10 of the ECHR on freedom of expression by Article 301 of the Turkish Criminal Code providing for the offence of defamation because it was too wide and vague and constituted a continuing threat to freedom of expression.[170] The law limiting the right, it follows must possess certain qualities such as clarity as to its objects and purposes. In the case of Connally v. General Construction,[171] the United States Supreme Court stated that a law is unconstitutionally vague when people ‘of common intelligence must necessarily guess at its meaning.’[172] The law has to be clear so that ordinary citizens can familiarize with it and order their actions and conduct. In Papachristou v. City of Jacksonville,[173] the United States Supreme Court further held that a law is vague and void if it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute ...’[174] The law other than being enshrined in a statute, must be capable of notifying the citizens of what is prohibited to enable them to avoid the consequences. 

To bolster this point, the holding of the Namibian High Court that ‘the words employed in a penal provision which limits the exercise of a fundamental freedom must at least provide an intelligible standard from which to gain an understanding of the act enjoined or prohibited so that those to whom the law apply know whether they act lawfully or not’[175] is germane. Citizens must have sufficient knowledge of the law seeking to limit their rights to enable them to act accordingly. 

Criminal libel provisions have been the subject of adjudication in various jurisdictions. In Sullivan v Attorney General,[176] the Seychelles Constitutional Court was seized of the question as to whether the offence of criminal libel under sections 184, 187 and 189(c) of Seychellois Penal Code were consistent with the right to freedom of expression under article 22 of the 1993 Constitution of the Republic of Seychelles. The allegation was that the petitioner published defamatory matter concerning a Cabinet minister, in the form of a print which contained a picture/image of M with the word 'Traitor', with the intention to defame him. The petition was dismissed and the court held that the provisions on defamation gave a clear indication of the legal rules applicable to the offence of libel. It can therefore be argued that chapter XVIII on the provisions of criminal libel is prescribed by law because it gives the scope of the offence and the defences available to an accused person as was stated in Sullivan’s case. In the CORD case, the phrase ‘prescribed by law’ was held to mean that ‘it must be part of a statute, and must be clear and accessible to citizens so that they are clear on what is prohibited.’[177] The provisions on criminal libel under the Penal Code are therefore prescribed by law. Having established that, the next issue to be examined is whether it is necessary and justifiable in a democratic society. 

Criminal libel under the Penal Code ‘falls in the category of misdemeanors- minor offences that attract a jail term of below three years.’[178] To determine whether it is necessary it is important to examine whether it is paramount for individuals to be imprisoned for at most three years for expressing themselves on matters of concern to the public. The means of achieving the aim which as will be discussed later is the protection of reputation has to be proportional to the objective of the limitation. It is argued that the punishment for offence under the Penal Code is not commensurate to the aim and is therefore disproportionate and unnecessary. In Nevanji Madanhire & Another,[179] the Constitutional Court of Zimbabwe concluded that ‘that the harmful and undesirable consequences of criminalizing defamation, viz. the chilling possibilities of arrest, detention and two years imprisonment, are manifestly excessive in their effect.’[180] In Kenya, criminal libel attracts all these chilling effects with the additional punishment of imprisonment of up to three years. 

In General Comment no. 34, the Human Rights Committee stated that ‘defamation laws must be crafted with care to ensure that they comply with paragraph 3 [the derogation clause in Article 19 of the Covenant], and that they do not serve, in practice, to stifle freedom of expression. …. Care should be taken by States Parties to avoid excessively punitive measures and penalties. ….States Parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.’[181] It follows that the penalty for the offence under the Penal Code is excessive and is not proportional to the interest of protecting reputation which may be achieved through a claim for civil remedies under the Defamation Act. 

The Committee applied the principles in the foregoing general comment in a complaint involving the imprisonment of a radio broadcaster for alleged criminal defamation and held that the sanction of imprisonment imposed on the author was inconsistent with article 19(3) of the ICCPR.[182] This is because imprisonment results in self-censorship and causes people and the media to withhold information which they would have otherwise communicated to the public. 

In Incal v Turkey,[183] the European Court held that conviction of Mr. Incal to seven months imprisonment and a fine and debarring him from the civil service together with preventing him from participating in social and political activities was a violation of the ECHR, article 10 on the right to freedom of expression. It may therefore be argued that Njehu Gatabaki’s arrest, trial, conviction and sentence to six months imprisonment amounted to a violation of the right to freedom of expression. Kamau Ngotho’s trial and those of others also fall in the same category. In other words, the application of criminal sanctions on different kinds of expression has a chilling effect on freedom of expression. 

In another case, Abdullah Aydin v. Turkey,[184] the same court was also not convinced that conviction for incitement to hatred and hostility on social, ethnic and regional differences and sentence to one year imprisonment and a fine were necessary even though it was prescribed by law and pursued the legitimate aims of prevention of disorder and crime, preservation of national security and territorial integrity. To be necessary, the means of achieving the aims of limitation has to be proportional. 

In Konaté v. Burkina Faso,[185] the African Court of Human and Peoples Rights decided that the conviction of the applicant for defamation, public insult and insulting a magistrate and sentence to 12 months imprisonment and payment of a fine, the equivalent of USD. 3,000, civil damages, the equivalent of USD. 9,000 and costs, the equivalent of USD. 500 for two articles he wrote which alleged that a local state prosecutor was corrupt were disproportionate. ‘The amounts of the fine, damages, interests and costs seem all the more excessive in that the applicant was deprived of revenue for publishing the weekly, due to its suspension for a period of two months.’[186] On the use of criminal law to protect reputation, the Court observed that the custodial sentence was a disproportionate restriction in the exercise of the right and further that, ‘other criminal sanctions, be they (fines) civil or administrative, are subject to the criteria of necessity and proportionality; which implies that if such sanctions are disproportionate or excessive, they are incompatible with the Charter and other relevant human rights instruments.’[187] Consequently Burkina Faso was in violation article 9 of the ACHPR, article 19 of the ICCPR and article 66(2) (c) of the revised ECOWAS treaty due to the existence of custodial sentences in it laws. 

This decision has been termed as a landmark ‘ruling because it should create a precedent against criminal defamation across much of the continent.’ [188] This decision emphasizes and buttresses the position that use of criminal sanctions to protect reputations of others is inimical and interferes with the right to freedom of expression and that civil law is an adequate mechanism that is less restrictive and appropriate for that purpose. 

This decision also supports the position held by Adjei ‘that criminal defamation laws inherently fail to strike an appropriate balance between reputations and freedom of expression’[189] and ‘that both criminal defamation and insult laws against the media are antithetical to a democratic society because civil alternatives exist to protect the reputation and rights of others.’[190] The existence of criminal libel provisions in the Penal Code calls for its repeal to ensure that Kenya not only upholds her constitutional duties and responsibilities under the Constitution but also under international human rights instruments including the ACHPR and the ICCPR. 

The upshot of foregoing discussion leads to the conclusion that imprisonment for exercising the right to freedom of expression as provided under the Penal Code is unnecessary in an open and democratic society that does not meet the threshold of the second component of the proportionality principle. The term open means inter alia exposed to public view while the term democracy means government of the people either directly or through represented by the people.[191] It follows therefore that an open and democratic society is one in which the people participate in the establishment of their government which has to be visible in the performance of its duties for transparency and accountability. 

The other issue to be considered is whether the limitation of freedom of expression through criminal libel is in pursuit of a legitimate aim. Under section 195 of the Penal Code, the interest that the offence seeks to protect is reputation. The section states that ‘defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation; and it is immaterial whether at the time of the publication of the defamatory matter the person concerning whom the matter is published is living or dead.’ Reputation is a legitimate aim which as provided under article 33(3) of the Constitution of Kenya and article 19(3) of the ICCPR, the government may limit the right to freedom of expression. The next question to ask is whether there exists another form of limitation that leads to a lesser impairment of the right. This is because the possibility of abuse and ‘arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a “chilling effect”, but also leads to other human rights violations, such as arbitrary detention and torture and other forms of cruel, inhuman or degrading treatment or punishment.’[192] Hence ‘defamation should be decriminalized.’[193] The call for decriminalization of defamation is based on the argument that there exist sufficient remedies for protection of reputation under civil law, which in Kenya is the Defamation Act. In the Geoffrey Andare case the judge noted ‘that libel laws provide for less restrictive means of achieving this purpose - see the case of Arthur Papa Odera vs Peter O. Ekisa, Civil suit No 142 of 2014 in which the reputation of the plaintiff, who alleged defamation in postings on social media by the defendant, was vindicated in a civil process by an award of Kshs.5m in damages to the plaintiff against the defendant for libel.’[194] The use of civil law for the purpose of protecting reputation is therefore preferred to criminal law because it is less restrictive. The citation of the Peter Ekisa case by the court is indicative of why civil law is considered the most appropriate for protection of reputations where the reliefs available to the defamed are reasonable and not excessive. 

As Flemming has asserted ‘a crime is an offence against the State, as representative of the public, which will vindicate its interests by punishing the offender. A criminal prosecution is not concerned with repairing an injury that may have been done to an individual, but with exacting a penalty in order to protect society as a whole. Tort liability, on the other hand, exists primarily to compensate the victim by compelling the wrongdoer to pay for the damage he has done.’[195]

The application of Flemming’s statement to libel is that the rationale for civil libel is the vindication and protection of the reputation of the defamed person[196] while that of criminal libel is punishment of defamers and protection of the community.[197] Hence the interest that criminal libel seeks to protect by limiting freedom of expression is better safeguarded through civil law more than criminal law. 

3.4: PUBLIC FIGURES AND CRIMINAL DEFAMATION 

By dint of section 198 of the Penal Code, the president, members of the cabinet and members of parliament are accorded absolute privilege and it is immaterial ‘whether the matter be true or false, and whether it be or be not known or believed to be false, and whether it be or be not published in good faith.’ The privilege accorded to high ranking government officials has been the subject of different decisions by a number of courts and bodies. The question is whether there is need for these functionaries to enjoy such privilege given that their occupation of public space exposes them to wide public scrutiny and gives them opportunities to reply to any queries raised on their actions and inactions. In the Konaté case, the African Court observed ‘that there is no doubt that a prosecutor is a “public figure”; as such, he is more exposed than an ordinary individual and is subject to many and more severe criticisms. Given that a higher degree of tolerance is expected of him/her, the laws of States Parties to the Charter and the Covenant with respect to dishonouring or tarnishing the reputation of public figures, such as members of the Judiciary, should therefore not provide more severe sanctions than those relating to offenses against the honour or reputation of an ordinary individual.’[198]

It follows from this holding that public figures are expected to endure a higher degree of criticism because of their position in society and that laws protecting honour and reputation have to protect all citizens without discrimination. To the extent that section 198 of the Penal Code gives absolute privilege to some public figures therefore contravenes the ACHPR and the ICCPR. 

Article 19, posits that ‘under no circumstances should defamation law provide any special protection for public officials, whatever their rank or status.’[199] This is because ‘it is now well established in international law that such officials should tolerate more, rather than less, criticism.’[200] The position occupied by public officials in any society exposes them to greater scrutiny hence they should be able to put up with more criticisms than ordinary individuals. 

The Human Rights Committee on its part, asserted, ‘that in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the 

Covenant upon uninhibited expression is particularly high’ and that law regarding matters including defamation of the head of state and the protection of honour of public officials should not provide for severe punishment on the basis of the identity of the defamed person.’[201] By giving certain public figures absolute privilege, the law serves to guarantee protection of reputation of the powerful that may at times use the law to protect themselves against criticism of their conduct in office. 

3.5: TRUTH AS A DEFENCE FOR CRIMINAL LIBEL 

Under section 197(a), the definition of unlawful publication excludes matters that are true and are published for the public benefit. The issue here is who should bear the burden of proving the truth of an allegation. It has been argued that ‘in cases involving statements on matters of public concern, the plaintiff should bear the burden of proving the falsity of any statements or imputations of fact alleged to be defamatory.’[202] This is premised on the fact that placing the burden on the defendant instead of the prosecution may prejudice the accused person since in a democratic society the media and individuals will at times express themselves on matters of public interest without being entirely certain about their veracity.[203]

However, in cases where a defendant is willing to prove the truth of a statement, the court has to allow it and be discharged if successful. In the case of Crown v John Peter Zenger,[204] decided by the United States Supreme Court, the defendant was arrested and charged with libeling a colonial governor, William Cosby. The Chief Justice at the time, James Delancey, who presided at the trial, was a wealthy adherent to Cosby's cause, and was only 32 years old at the time of the trial. Cosby appointed Delancey to be chief justice when the former Chief Justice ruled against Cosby in a celebrated case. But he kept Delancey on a tight rein, and appointed him to serve during Cosby's ‘will and pleasure.’ Zenger's paper protested these arbitrary actions.[205] The court held he was innocent after proving during the trial that the allegations were true.[206]

In Castells v. Spain,[207] the European Court set aside a conviction of the applicant for failure by the Spanish courts to accord the Mr. Castells, a journalist in the respondent state, a chance to prove the truth of what he had reported. 

Castells had published an article lamenting about police inaction in relation to skirmishes and murders in the Basque Country. It further alleged conspiracy and that the government was to blame for the violence. Criminal charges were preferred against him for insulting the government for which he was convicted and sentenced to conditional imprisonment.[208]

It was held that trial, conviction and sentence interfered with freedom of expression ‘because he was denied the ability to establish the truth of the challenged statements.’[209]

It follows that for truth to be a proper defence in a charge of criminal libel, the defendant should be given the chance to prove the truth of any allegations, where it is possible and that the state has to provide any necessary information in its possession whenever the question in issue relates to a matter in which the information is not yet in the public domain. 

3.6: CONCLUSION 

This chapter has examined the offence of criminal libel in light of the proportionality principle to see whether it meets the threshold of constitutionality as established by the jurisprudence and scholarship of regional courts and monitoring bodies. 

Each component of the principle was looked into for clear illustration. It was found that the offence is prescribed by law as contained in the Penal Code and that it is in pursuit of a legitimate aim which is the protection of reputation as is permitted under the Constitution, the ICCPR amongst other human rights instruments. The discussion then proceeded to look into whether the offence meets the threshold of necessity in an open and democratic society. 

It was found that it does not because the possibility of imposition of criminal sanctions under the Penal Code including imprisonment for at most three years has a chilling effect on the right to freedom of expression. The offence therefore fails to meet the required standard for it to be deemed consistent with the right and is therefore unconstitutional. This is because it does not conform to the proportionality principle. Though it is prescribed by law and seeks to protect reputation which is a legitimate aim, it fails to meet the threshold of necessity in a democratic society. 

The chapter further looked at the place of public figures within the matrix of criminal libel and found out that the nature of an open and democratic society demands they should expect more criticism ordinary citizens. The law should therefore ensure that they tolerate a higher degree of scrutiny than anyone else. 

Truth as a defence was also examined. The position under section 197(a) of the Penal Code is that where a matter is true and for the public benefit that it should be published, then it is not unlawful publication and not defamatory. This needs to be maintained so that truth is a complete defence. 

CHAPTER FOUR: FINDINGS AND RECOMMENDATIONS 

4.1: INTRODUCTION 

This chapter presents the key findings of the study and proposes a few recommendations to guarantee the widest possible enjoyment of the right to freedom of expression without fear of criminal repercussions as is presently the case with respect to the offence of criminal libel under the Penal Code. It will give a summary of what the right is, its components and usefulness to individuals and to society at large. It will then discuss briefly the rationale behind the inconsistency of criminal libel with the right to freedom of expression before embarking on a discussion of the recommendations. 

4.2: KEY FINDINGS OF THE STUDY 

This study has found that the right to freedom of expression is now recognized by various international and regional human rights instruments and also in the constitutions of many democratic societies and has been the subject of interpretation by courts and other monitoring bodies which have helped in explaining its nature, scope and importance to citizens as individuals and to society.[210] The right is has the following of components: 

The first one is that right is not absolute. It may be limited to protect other rights and interests that are equally important to society.[211] Such restrictions may be imposed for the protection of ‘reputations and rights of others’ as provided under article 33 of the Constitution of Kenya and article 19 of the ICCPR. Other interests include maintenance of public order, health, morality and national security. 

The right to freedom of expression is fundamental to citizens and society but it is not alone and may therefore be limited to guarantee such other rights and interests that are deemed to be of great value to society. In limiting the right, the state is obliged to comply with standards provided not only in national law but also international law. 

The second component is that the right covers all means of communicating expressive content.[212] Freedom to expression is the engine through which one communicates with others, to share and receive ideas from them, to persuade others, at home, at the workplace and everywhere else that a person is. The right therefore covers all means of passing and exchanging information including verbal, nonverbal and electronic. People therefore have a wide range of options as regards the means of expressing themselves. 

The third one is that the right is applicable regardless of frontiers without restriction on which means they use for expression.[213] Citizens are entitled to seek, impart and receive information and ideas beyond the borders of the country subject only to the limitations laid down as required by law. 

The fourth component is that the right protects all kinds of ideas and information.[214] This means that except for expression that extends to what is prohibited by the Constitution or statute, all other forms of expression are protected and the state may not forbid certain kinds of information simply because it shocking, caustic or unpleasant. 

The fifth one is that the right is constitutive of the right to seek and receive.[215] This shows that freedom of expression is intertwined with the right to access information under article 35 of the Constitution of Kenya. Citizens therefore have the right to seek and receive information held by the state and another person, ‘and required for the exercise or protection of any right or fundamental freedom.’ Citizens may therefore seek that information from others or the state which has the duty to ‘publish and publicize any important information affecting the nation’ and which is needful for protection of other rights and freedoms. 

The sixth component is that the right is held against the state and which has positive and negative obligations.[216] This means that the state should not interfere with the enjoyment of the right by the citizens except when it becomes necessary to restrict it for the protection of other rights and interests. 

The vitality of the right was captured by the Supreme Court of India when it held that ‘freedom of speech and expression in a spirited democracy is a highly treasured value. Authors, philosophers and thinkers have considered it as a prized asset to the individuality and overall progression of a thinking society, as it permits argument, allows dissent to have a respectable place, and honours contrary stances.’[217] This means that enjoyment of the right enables individual self-realization through communication and reception of ideas to and from others. It also ennobles the mind by enhancing the capacity for one to learn from others who may be of a different persuasion and benefits the whole society through the formulation of different options between and amongst individuals. It also assists in the creation of an informed society that is able to play its rightful role in determining its political, social and economic destiny.[218]

Criminal libel as provided under the Penal Code seeks to protect the rights and reputations of others and is a legitimate interest on which the right may be limited by the state. It has also been established that its provision as laid down under the Penal Code meets the threshold for ‘prescribed by law’ as required by the proportionality principle. It is however, not necessary in a democratic society because their exists less restrictive means under the Defamation Act which provides for civil remedies for defamed persons, it is disproportionate in that the possibility of imposition of criminal sanctions including custodial sentences and huge fines have a chilling effect on the right to freedom of expression.[219] Criminal libel therefore, fails to meet the standard for it to be a legitimate limitation for being an incommensurate and disproportionate means for protection of the reputations of others in the place of a less restrictive one that is available. 

In that respect, jurisprudence emanating from international and regional courts and monitoring bodies suggests that it should only be enforced only in extreme cases and that public figures that have been found to use such provisions to shield themselves from criticism are expected to tolerate a higher degree of tolerance for divergent views because their status in society exposes them to more scrutiny than ordinary citizens.[220]

Public figures should also not enjoy any privilege than ordinary citizens because their positions accord them opportunities to reply or to allegations about their actions and inactions than the masses. 

It is also vital that truth be a defence to criminal libel that discharges accused persons from any charges. In that regard, the state has a duty to disclose any information in its possession that defendants need for proof of the truth of their assertions. 

4.3: RECOMMENDATIONS 

In light of the findings discussed above, the following recommendations are proposed to ensure that the right to freedom of expression is safeguarded and its limitation for the protection of the reputations and rights of others, does not unduly silence legitimate criticism of official conduct nor serve to deny publication of information that is of public interest because of the threat of criminal sanctions- 

i. It is recommended that Parliament should repeal the criminal libel provisions in the Penal Code.[221] This will ensure that the country complies and fulfils its international and regional human rights under instruments such as the ICCPR and the ACHPR. The offence was imported to Kenya during the colonial period to enhance respect for the colonial government and its officers. 

ii. It is recommended that Parliament should cap the amount of damages available to individuals whose reputations are injured through the publication of defamatory statements. Civil libel has throughout this study been proposed as a less restrictive means appropriate for the protection of reputations. It can however achieve the opposite, that is, stifle freedom of expression, if exorbitant awards are granted by the courts causing media outlets, journalists and individuals to withhold information that is of public interest.[222] This is because decisions from the courts indicate that courts have wide discretion to determine the awards for defamed individuals. The following cases show the kind of awards that the courts have granted for defamation in the past- 

a) Nicholas Biwott v Clays Limited,[223]-Kshs. 30 Million. 

b) Charles Kariuki t/a Charles Kariuki & Co. Advocates,[224]-Kshs. 20 Million, 

c) Obure v Tom Alwako & Others,[225]-Kshs. 17 Million, 

d) Joshua Kulei v Kalamka Limited,[226]-Kshs. 10 Million and 

e) Daniel Musinga t/a Daniel Musinga & Co. Advocates,[227]-Kshs. 10 Million. 

The Court of Appeal in Gicheru v Morton & Another[228] criticized such awards stating that they lacked any juridical basis and were obviously excessive and could not be used as persuasive authorities to guide trial courts in similar claims. 

In Tolstoy Miloslavsky v United Kingdom,[229] the European Court of Human Rights decided that a defamation award of £1.5m constituted a violation of Article 10. The court was of the view that the award taking into account its size and British laws at the time was not necessary in a democratic society and therefore an infringement of the applicant’s right under article 10. The applicant had written in a pamphlet in 1987 accusing Lord Aldington of war crimes. The award in damages was estimated to be three times the largest amount previously granted by an English court and was therefore disproportionate and excessive hence a violation article 10. 

iii. It is also recommended that leaders both at the national and in the devolved governments should learn to tolerate a greater degree of criticism for their conduct. Such criticism is necessary in democratic societies such as Kenya for checks and balances to guarantee some of the national values and principles of governance under article 10 of the Constitution of Kenya including accountability, good governance, participation of the people and transparency. The absolute privilege enjoyed by certain public figures should equally be waived to ensure equality in protection of reputation for ordinary citizens and their leaders. 

It is proposed that implementation of these recommendations will serve to enhance the exercise and enjoyment of the right to freedom of expression and also guarantee protection reputations under civil law without undue restrictions. 

4.4: CONCLUSION 

This chapter has provided findings of the study on why criminal libel is unnecessary in open and democratic society. It also suggested recommendations on why protection of reputation can be achieved under civil law without the undue infringement of the right to freedom of expression which may be occasioned by criminal sanctions. Such sanctions are not necessary because they are susceptible to chilling the right to freedom of expression. Civil libel is considered appropriate for the protection of reputation where it provides fair remedies to the libeled person. 

There is need for repeal of the criminal libel provisions of the Penal Code and for capping the amount of damages the courts may award to defamed individuals since excessive awards may have the chilling effect on the right because of the criminal sanctions. 

The law should also provide that leaders tolerate a higher degree of criticism than ordinary citizens by dint of their position in society which keeps them under constant and protracted public scrutiny for their acts, omissions and conduct. This is because in a democratic society, criticism is expected and should be encouraged to ensure accountability. Any unwarranted attacks on their reputation should be protected under civil law like that of other citizens. 

[1] Constitution of Kenya 2010. 

[2] Singh, Mala (2009). Making academic freedom and institutional autonomy real in boundary conditions: some issues from African higher education. In: Past, Present and Future of the Magna Charta Universitatum,18-20 Sep 2008, Bologna, Italy. 

[3] See Constitution (n 1 above) art. 33 (1). 

[4] See Constitution ( n 1 above) art. 33 (2). 

[5] The UN General Assembly, in its first session affirmed that the Freedom of Information [which inheres in the Freedom of Expression] is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated.” See Resolution 59(1), 14 December 1946. 

[6] Aharon Barak, “Freedom of Expression and its Limitations” Tel Aviv University No. 8 1990), pp. 4e-11e available at <http://www.jstor.org/stable/23902900> accessed 16 September 2016. 

[7] See< http://www.article19.org/pages/en/freedom-of-expression.html.>accessed 15 August 2016. 

[8] Global Trends in NGO Law, ‘The Right to Freedom of Expression: Restrictions on a Foundational Right,’ A quarterly review of NGO legal trends around the world. Vol. 6, Issue 1 available at http://www.icnl.org/research/trends/trends6-1.pdf> accessed 19 July 2016. 

[9] R.W.Hodgin, ‘Defamation in East Africa’, Journal of African Law, Vol. 17, No. 1 (Spring, 1973), p. 66 School of Oriental and African Studies available at <http://www.jstor.org/stable/744651> accessed 22 June 2015 

[10] See Buwembo and Others v. Attorney General [2009] UGCC 5. 

[11] Robert, C. Post, ‘The Social Foundations of Defamation Law: Reputation and the Constitution,’ 74 CAL. L. REV. [1986] 691, 692. See also John Sparrow, ‘Freedom of Expression: Too Much of a Good Thing?’The American Scholar, Vol. 46, No. 2 (Spring 1977), pp. 165-180 available at< http://www.jstor.org/stable/41207470>accessed 15 June 2016. 

[12] Cass R. Sunstein, Hard Defamation Cases, 25 Wm. & Mary L. Rev. 891 (1984), <http://scholarship.law.wm.edu/wmlr/vol25/iss5/7>accessed 1 July 2016. 

[13] Olisson, M, ‘The Mau Mau and the Nation State:Speaking about History in Contemporary Kenyan Politics’ available at <http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1323689&fileOId=1323690> accessed 19/12/ 2015. 

[14] Joseph Oloka-Onyango, ‘Human Rights and Sustainable Development in Contemporary Africa: A New Dawn, or Retreating Horizons?’ Human Development Report 2000 Background Paper. BBBB 

[15] Atua A.K & El-Obaid A.E, ‘Human Rights in Africa -A New Perspective on Linking the Past to the Present,’ (1996) 41 McGill L.J. 819 available at <http://www.lawjournal.mcgill.ca/userfiles/other/219010141.ElObaid.pdf>accessed 29 July 2016. 

[16] Claude E. Welch, Jr, “The African Charter and the Right to Freedom of Expression in Africa”, Buffalo Human Rights Review 4(1999) 105. 

[17] Chapter 63 Laws of Kenya. 

[18] Africa Today, ‘Talking Drums: Commentary on African Affairs’Africa Today, Vol. 5, No. 4 (Jul. - Aug., 1958), pp. 3-5+22, Indiana University Press available at< http://www.jstor.org/stable/4183957> accessed 5 June 2016. 

[19] Charles M. Ngugi, ‘Free Expression and Authority in Contest: The Evolution of Freedom of Expression in Kenya’,Emory University PhD Thesis, 2007 available at <https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=charles+muiru+ngugi+pdf> accessed 30 September 2016. 

[20] Wolf, Tom, Carolyn Logan, and Jeremiah Owiti, with Paul Kiage. ‘A New Dawn? Popular Optimism in Kenya After the Transition,’ 2004 available at <http://afrobarometer.org/sites/default/files/publications/Working%20paper/AfropaperNo33.pdf> accessed 25 July 2016. 

[21] See Constitution (n 1 above) Chapter 4. 

[22] Smet, Stijn, ‘Freedom of Expression and the Right to Reputation: Human Rights in Conflict.’ American University International Law Review 26 no. 1 (2010): 183 available at <http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1700&context=auilr >accessed 19 June 2016. 

[23] See Constitution (n 1 above) Sixth Schedule 7(1) which provides, “All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.” 

[24] Badala Tachilisa Balule, ‘Insult laws: a challenge to media freedom in the SADC's fledgling democracies?’The Comparative and International Law Journal of Southern Africa, Vol. 41, No. 3(November 2008), p. 404, Institute of Foreign and Comparative Law available at <http://www.jstor.org/stable/23253193>accessed 28 September 2016. 

[25]Theodore Natsoulas, ‘Harold G. Robertson: An Editor's Reversal from Settler Critic to Ally in Kenya, 1922-1923’, The International Journal of African Historical Studies, Vol. 5, No. 4 (1972), p.610 Boston University African Studies Center. 

[26] Melling v O’Mathghamhna [1962] IR 1. 

[27] Defamation Act, Chapter 36, Laws of Kenya. 

[28] Descheemaeker, Eric. ‘Protecting Reputation: Defamation and Negligence’ Oxford Journal of Legal Studies 29, no. 4 (2009): 603-41<http://www.jstor.org/stable/27750068>acceseed 24 April 2016. 

[29] Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1999/64, 29 January 1999, para. 28. 

[30] Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 52 and Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2001/64, 26 January 2001. 

[31] See Joint Declaration of 10 December 2002. 

[32] Curzon, L. B, ‘Jurisprudence-Lecture Notes’,2nd ed.(1995).Cavendish Publishing Company, London p. 200, para 20.3 

[33] John Stuart Mill, On Liberty, reprinted in ON LIBERTY AND OTHER ESSAYS 5 ( John Gray ed, 3 ed OUP 2008) (1859) p. 71. 

[34] Ten Cate, Irene M. (2010) "Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses," Yale Journal of Law & the Humanities: Vol. 22: Iss. 1, Article 2. Available at: http://digitalcommons.law.yale.edu/yjlh/vol22/iss1/2[accessed 27 August 2015. 

[35] John Locke, Two Treatises of Government, Peter Laslett, ed. (Cambridge: Cambridge University Press 1988) para. 171. 

[36]Jennifer Welchman, ‘Locke on Slavery and Inalienable Rights’, Canadian Journal of Philosophy, Vol. 25, No. 1 (Mar., 1995), p. 67available at< http://www.jstor.org/stable/40231899>[accessed 17 July 2016]., See also James Gordon Clapp, 'John Locke’ Encyclopedia of Philosophy, vol. 4 (New York: Macmillan [1967] 1972) 499. 

[37] See note 35 above para. 142. 

[38] Larry A. Alexander, ‘Freedom of Expression as a Human Right’ University of San Diego School of Law [2001], available at http://papers.ssrn.com/abstract=285432[accessesd 5 October 2016]. 

[39] UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23, para 5, available at: http://www.refworld.org/docid/3ae6b39ec.html [accessed 25 November 2015]. 

[40] Nairobi Law Monthly v Kenya Electricity Generating Company and 3 others, Petition No. 278 of 2011, para 26. 

[41] Attorney-General (South Australia) v Corporation of the City of Adelaide (2013) 249 CLR 1, 67 [151]. 

[42] Enid Campbell and Harry Whitmore, Freedom in Australia (Sydney University Press, 1966) 113. 

[43] Richard N. Winfield & Kristin Mendoza, The Abolition Movement: Decriminalizing Defamation and Insult Laws Communications Lawyer, Volume 25, Number 3, Fall 2007. 

[44] Dan Kozlowski, ‘For the Protection of the Reputation or Rights of Others: The European Court of Human Rights’ Interpretation of the Defamation Exception in Article 10(2), 11 Comm. L. & Pol’y 133. 

[45] Mutua M, Kenya’s Quest for Democracy: Taming Leviathan Lynne Rienner Publishers, Inc (2008) p. 53, 69. 

[46] Ibid. 

[47] Karuti Kanyinga and James D. Long, ‘The Political Economy of Reforms in Kenya: The Post-2007 Election Violence and a New Constitution’ African Studies Review, Vol. 55, No. 1 (APRIL 2012), pp. 31-51, Cambridge University Press, available at http://www.jstor.org/stable/41804127 accessed 1 August 2016. 

[48] Monis v The Queen (2013) 249 CLR 92, 128 [60]. 

[49] Eric Barendt, Freedom of Speech (Oxford University Press, 2nd ed, 2007) 13. 

[50] Ibid. 

[51] R v Secretary of State for the Home Department; Ex Parte Simms [2002] 2 AC 115, 126 (Lord Steyn). 

[52] Elena Yanchukova, “Criminal Defamation and Insult Laws: An Infringement on the Freedom of Expression in European and Post-Communist Jurisdictions.” 41 Colum. J. Transnat'l L. 861 2002-2003 available at <https://www.copyright.com/ccc/basicSearch.do?&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0010-1931>[accessed 23 August 2016]. 

[53] The Prosecutor v. Simon Bikindi (Judgment), ICTR-01-72-T, International Criminal Tribunal for Rwanda (ICTR), 2 December 2008, available at: http://www.refworld.org/docid/493524762.html [accessed 9 August 2016] para. 379. 

[54] Universal Declaration of Human Rights, A/RES/217, 10 December 1948, second paragraph of the Preamble and Article 19. 

[55] International Convention on the Elimination of All Forms of Racial Discrimination, G.A. res 2106 (XX), Annex, 20 U.N. GAOR Supp. (No.14), U.N. Doc A/6014 (1966), 660 U.N.T.S. 195. 

[56] International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, Article 19. 

[57] African Charter on Human and Peoples’ Rights, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5; 1520 U.N.T.S. 217, Article 9. 

[58] American Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 123, Article 13(1). 

[59] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222, 312 ETS 5, as amended by Protocol No. 11 of 11 May 1994, Article 10(1). 

[60] UN Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Addendum: Mission to the Russian Federation (16–26 April 2012), 11 March 2013, A/HRC/23/34/Add.1, available at: http://www.refworld.org/docid/51b9a56b4.html [accessed 17 July 2016]. 

[61] Ibid.,para 3. 

[62] Our Visions — The Next 500 Years, Race, Poverty & the Environment, Vol. 3, No. 3, Special Issue Native Nations in 1992: 500 Years of Cultural Survival (Fall 1992), pp. 4-5, Reimagine!. available at<http://www.jstor.org/stable/41554074>[accessesed 21 June 2016] 

[63] Philip G. Altbach, ‘Academic Freedom: International Realities and Challenges’, Higher Education, Vol. 41, No. 1/2, Changing Academic Workplace: Comparative Perspectives (Jan. - Mar., 2001), pp. 205-219. Available at<http://www.jstor.org/stable/3448125>[accessed 15 July 2015]. 

[64] 354 US 234 (1957). 

[65] 438 U.S. 265 (1978). 

[66] Communications 105/93, 128/94, 130/94 and 152/96, Media Rights Agenda, Constitutional Rights Project, Media Rights Agenda and Constitutional Rights Project v Nigeria. Available at<http://www.chr.up.ac.za/index.php/browse-by-subject/407-nigeria-media-rights-agenda-and-others-v-nigeria-2000-ahrlr-200-achpr-1998.html>[accessesed 11 July 2016]. 

[67] M Banderin, ‘Recent Developments in the African Regional Human Rights System’ (2005) 5/1 Human Rights Law Review 130. 

[68] Derfner, Armand and Hebert, J. Gerald (2016) ‘Voting Is Speech,’ Yale Law & Policy Review: Vol. 34: Iss. 2, Article 6. Available at: http://digitalcommons.law.yale.edu/ylpr/vol34/iss2/6[accessed 17 July 2016]. 

[69] CERD, Article 4. 

[70] ICCPR, Article 20. 

[71] National Cohesion and Integration Act, No. 12 of 2008, Laws of Kenya, s.13. 

[72] [2001] 2 AC 127. 

[73] Ibid.,at 201. 

[74] Andrew T. Kenyon, ‘What Conversation? Free Speech and Defamation Law’ The Modern Law Review, Vol. 73, No. 5 (SEPTEMBER 2010), pp. 697-720. Available at<http://www.jstor.org/stable/40865580>[accessed 1 June 2016]. 

[75] Manisha Koirala v. Shashi Lal Nair & Ors, 2003 (2) Bom CR 136. 

[76] [1990] 1 AC 109. 

[77] Geoffrey R. Stone, ‘Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century Lead Article,’ 36 Pepperdine Law Review 273 (2008). 

[78] [1991] 1 AC 696, 748. 

[79] Eric Goldberg, ‘Free Speech consequentialism’Columbia Law Review, Vol. 116, No. 3 (APRIL 2016), pp. 687-756. Available at <http://www.jstor.org/stable/43783393>[accessed 27 June 2015]. 

[80] Post, Robert C., ‘Democracy and Equality’ (2005). Faculty Scholarship Series. Paper 177. Available at <http://digitalcommons.law.yale.edu/fss_papers/177>[accessed 21 August 2016]. 

[81] A. Meiklejohn, Free Speech and its Relation to Self-Government 27 (1948). 

[82] Allan, T. R. S. Common Law Constitutionalism and Freedom of Speech (2000). In J. Beatson and Y. Cripps (eds.) Freedom of Expression and Freedom of Information. Oxford, 17. 

[83] Heyman, Steven J., Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression. Boston University Law Review, Vol. 78, No. 5, 1998. Available at SSRN: <http://ssrn.com/abstract=157818 orhttp://dx.doi.org/10.2139/ssrn.157818>[accessed 13 November 2015]. 

[84] John Horgan, “Credibility and Accountability” The Crane Bag, Vol. 8, No. 2, Media and Popular Culture (1984), pp. 9-12. Availableat<http://www.jstor.org/stable/30023269>[accessed 15 July 2015]. 

[85] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 70. 

[86] Tae-Hoon Park v. Republic of Korea, 20 October 1998, Communication No. 628/1995, para.10.3. 

[87] Handyside v. the United Kingdom, 7 December 1976, Application No. 5493/72, para. 49. 

[88]Republic of Costa Rica. Constitutional Chamber of the Supreme Court of Justice. Amparo Remedy Res. No. 2011004160, March 29, 2011. Available at: http://sitios.poder-judicial.go.cr/salaconstitucional/Constitucion%20Politica/Judgmenton2011/11-004160.html[accessed 5 April 2016]. 

[89] Comm . No. 250/2002 (2003), African Commission on Human and Peoples' Rights. Available at<http://www1.umn.edu/humanrts/africa/comcases/250-2002.html>[accessed 7 June 2015] 

[90] [2016] Eklr available at< http://kenyalaw.org/caselaw/cases/view/121033/>[accessed 17 June 2015]. 

[91] Ibid.,para 83. 

[92] Higginbotham, F. Michael (2002) ‘Speaking Truth to Power: A Tribute to A. Leon Higginbotham, Jr,’ Yale Law & Policy Review: Vol. 20: Iss.2, Article 7.Available at < http://digitalcommons.law.yale.edu/ylpr/vol20/iss2/7>[accessed 21 June 2016]. 

[93] Rhys, E. (ed. ) Areopagitica and other Prose Works of John Milton (1927). London, J. M. Dent & Sons Ltd. 

[94] [1919] 250U.S. 616, 630. 

[95] Stanford Encyclopedia of Philosophy, Free speech (2016) available at<http://plato.stanford.edu/entries/freedom-speech/>[accessed 13 June 2016]. 

[96] See note above at p. 20. 

[97] Geoffrey R. Stone, ‘Justice Brennan and the Freedom of Speech: A First Amendment Odyssey,’ 139 University of Pennsylvania Law Review 1333 (1991). 

[98] New York Times v. Sullivan, 376 U.S. 254, 270 (1964). 

[99] H.C.C.C. NO.1073 of 2004. 

[100]Ulrich Karpen, ‘Freedom of Expression as a Basic Right: A German View’ The American Journal of Comparative Law, Vol. 37, No. 2 (Spring, 1989), pp. 395-404. Available at <http://www.jstor.org/stable/840173>[accessed 19 June 2016]. 

[101] David A. Strauss, ‘Persuasion, Autonomy, and Freedom of Expression’ Columbia Law Review, Vol. 91, No. 2 (Mar., 1991), pp. 334-371.available at<http://www.jstor.org/stable/1122761>[accessed 20 July 2016]. 

[102] Gilbert Marcus & Derek Splitz, Constitutional Law of South Africa, (Revision Service 1999).available at http://www.chr.up.ac.za/chr_old/centre_publications/constitlaw/pdf/20-Expression.pdf[accessed 23 July 2016].p.20-8. 

[103] Thomas Scanlon, A Theory of Freedom of Expression, Philosophy & Public Affairs, Vol. 1, No. 2 (Winter, 1972), pp. 204-226. Available at<http://www.jstor.org/stable/2264971>[accessed 1 August 2016] 

[104] Emerson, Thomas I., ‘Freedom of Association and Freedom of Expression’ (1964). Faculty Scholarship Series. Paper 2797. http://digitalcommons.law.yale.edu/fss_papers/2797[accessed 7 July 2016]. 

[105] Kent Greenawalt, ‘Free Speech Justifications’ Columbia Law Review’ Vol. 89, No. 1 (Jan., 1989), pp. 119-155. Available at<http://www.jstor.org/stable/1122730>[accessed 5 June 2016]. 

[106] [1969] 2 QB 375,391. 

[107] Francis Biddle, ‘Freedom of Speech and Propaganda’American Bar Association Journal, Vol. 26, No. 10 (October 1940), pp. 795-797. Available at<http://www.jstor.org/stable/25712932>[accessed 23 June 2016] 

[108] Stout, Michael J., "The Effectiveness of Nazi Propaganda During World War II" (2011). Master's Theses and Doctoral Dissertations. Paper. 

314. 

[109] Peter Ulvin, ‘Ethnicity and Power in Burundi and Rwanda: Different Paths to Mass Violence’ Comparative Politics, Vol. 31, No. 3 (Apr., 1999), pp. 253-271.available at< http://www.jstor.org/stable/422339> [accessed 20 June 2016]. 

[110] Navenethen Pillay, Freedom of Speech and Incitement to Criminal Activity: A Delicate Balance (2008). Pillay Macro Final Version. 

[111] [1969] 395 U.S. 444, 447. 

[112] Ross v. Canada, U.N. Human Rights Committee, Communication No. 736/1997,U.N. Doc.CCPR/C/70/D/736/1997 (2000). 

[113] Ezekiel Rediker,The Incitement of Terrorism on the Internet: Legal Standards, Enforcement, and the Role of the European Union, 36 Mich. J.Int'l L. 321 (2015).Available at:<http://repository.law.umich.edu/mjil/vol36/iss2/3> [accessed 17 April 2016]. 

[114] Kahan, Dan M., ‘Two Liberal Fallacies in the Hate Crimes Debate’ (2001). Faculty Scholarship Series. Paper 107.http://digitalcommons.law.yale.edu/fss_papers/107[accessed 17 June 2016]. 

[115] Badala Tachilisa Balule,Striking a balance between media freedom and protection of reputation: the defence ofreasonable publication in Botswana’The Comparative and International Law Journal of Southern Africa, Vol. 46, No. 1(MARCH 2013), pp. 1-18. Available at<http://www.jstor.org/stable/23644686>[accessed 11 August 2016]. 

[116] ICCPR Art.19 (3) (a). 

[117] [2012] eKLR. 

[118] Ibid.,para 46. 

[119] I/A Court H.R. Case of Eduardo Kimel v. Argentina. Judgment of May 2, 2008. Series C No.177, para. 83. 

[120] Ibid.,para. 84. 

[121] [1986] 1 S.C.R. 103. 

[122] Moshe Cohen-Eliya & Iddo Porat, Proportionality and the Culture of Justification, 59 A M . J. C RIM . L. 463, 467 (2011). 

[123] Mattias Kumm, The Idea of Socratic Contestation and the Right to Justification, 4 L AW & E THICS HUM . R TS . 141,142 (2010). 

[124] David M. Beatty, The Ultimate Rule of Law 162 (2004). 

[125] [2015] eKLR. 

[126] Ibid.,para. 213. 

[127] See (n 124). Paras. 210, 211, 212. 

[128] The Johns Hopkins University Press, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information,Human Rights Quarterly, Vol. 20, No. 1 (Feb., 1998), pp. 1-11, Principle 1.1.available at< http://www.jstor.org/stable/762695>[accessed 13 August 2016]. 

[129] Association Ekin v. France, no. 39288/98, July 17, 2001. 

[130] Chauvy and Others v. France, no. 64915/01, June 29, 2004. 

[131] Hashman and Harrup v. the United Kingdom, no. 25594/94, Nov. 25, 1999. 

[132] Grayned v. City of Rockford 408 U.S. 104, 92 S Ct 2294 (1972), 2299. 

[133] Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984).para. 15. 

[134] Jersild v. Denmark, Series A, no. 298, 19 EHRR 1 (1995). 

[135] Bladet Tromsø and Stensaas v. Norway, no. 21980/93, May 20, 1999. 

[136] No. 11034/84, May 22, 1990. 

[137] Vereniging Weekblad Bluf! v. the Netherlands, No. 16616/90, Feb. 9, 1995.,see also Perrin v. the United Kingdom, no. 5446/03, Oct. 18, 2005. 

[138] [1987] 1 WLR 1248. 

[139] Thomas v. News Group Newspapers Ltd [2002] EMLR 4. 

[140] Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Communications No. 140/94, 141/94, 145/95. 

[141] Ibid., paras. 41-42. 

[142] United States of Mexico. Supreme Court of Justice. Judgment of Amparo Appeal 248/2011, July 13, 2011. Available at :http://www2.scjn.gob.mx/juridica/engroseoncerradoonpublico/11002480.002.doc[accessed 17 July 2016]. 

[143] ICCPR, Art. 19 (3) (a) & (b). 

[144] Bryan A. Garner, Black’s Law Dictionary (9th Ed. 2009) West Publishing Co. P. 999. 

[145] Gregory C. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. L. & POL'Y 433, 441 (2004). 

[146] Judicature Act, Chapter 3, Laws of Kenya, Revised Edition 2012 [2010], see s. 3. 

[147] BLACKSTONE W, COMMENTARIES ON THE LAWS OF ENGLAND 150 (1765). 

[148] See (n. 145) above paras. 438-443. 

[149] Veeder V. V, ‘The History and Theory of the Law of Defamation’ Columbia Law Review, Vol. 3, No. 8 (Dec., 1903), pp. 546-573.available at<http://www.jstor.org/stable/1109121>accessed 9 September 2016. 

[150] PERKINS R.M & BOYCE R.N, CRIMINAL LAW 488 (3d ed. 1982). 

[151] Koffler J.S & Gershman B.L, The New Seditious Libel, 69 CORNELL L. REV. 816, 819 (1984). 

[152] 11 Serg. & Rawle 394, 404 (Pa. 1824). 

[153] 93 Eng. Rep. 849 (K.B. 1727). 

[154] Charlotte L. Bynum, Feminism and Pornography: A New Zealand Perspective, 65 TUL. L. REV. 1131, 1140 (1991). 

[155] David S. Bogen, The Origins of Freedom of Speech and Press, 42 MD. L. REV. 429, 444 (1983). 

[156] Edward P. Cheyney, ‘The Court of Star Chamber’ The American Historical Review, Vol. 18, No. 4 (Jul., 1913), pp. 727-750, Oxford University Press on behalf of the American Historical Association. Available at<http://www.jstor.org/stable/1834768>accessed 9 August 2016. 

[157] Justine Limpitlaw, ‘It's time for Africa to throw off its colonial legal shackles’ available at<http://www.dw.com/en/its-time-for-africa-to-throw-off-its-colonial-legal-shackles/a-19212556>accessed 15 July 2016. 

[158] Issa Sikita da Silva, ‘Defamation: Sword of Damocles for African journalists’ available at <http://www.dc4mf.org/en/content/defamation-sword-damocles-african-journalists-6789>accessed 1 July 2016. 

[159] See (n.19) above. 

[160] Ibid.,P. 257. 

[161] See<http://www.irinnews.org/news/2002/08/16/jailed-mp-released-presidential-decree>[accessed18 July 2016]. 

[162] See also<https://cpj.org/2002/08/journalist-jailed-for-criminal-defamation.php>[accessed 2 August 2016]. 

[163]See<http://www.panapress.com/Kenyan-journalist-freed-as-govt-discontinues-libel-case--12-562069-42-lang1-index.html>[accessed 23 July 2016]. 

[164] Monica Youn, ‘The Chilling Effect and the Problem of Private Action’ VANDERBILT LAW REVIEW [Vol. 66:5:1473] at 1481 available at<https://www.vanderbiltlawreview.org/wp- content/uploads/sites/89/2013/10/Youn_66_Vand_L_Rev_1473.pdf>accessed 8 July 2016. 

[165] Article 19, Declaration of Principles on Freedom of Expression in Africa, 22 October 2002, available at: http://www.refworld.org/docid/4753d3a40.html [accessed 8 August 2016], Principle II (2). 

[166] African Commission on Human and Peoples’ Rights, Resolution on Repealing Criminal Defamation Laws in Africa, Resolution 169, Banjul, The Gambia, from 10 – 24 November 2010 available at<http://www.achpr.org/sessions/48th/resolutions/169/>5 August 2016. 

[167] Faith Pansy Tlakula, Special Rapporteur on Freedom of Expression and Access to Information, available at<http://www.achpr.org/sessions/48th/intersession-activity-reports/freedom-of-expression/>accessed 10 August 2010.,see also Adelin Hulin,(Ed) Joint Declarations of the representatives of intergovernmental bodies to protect free media and expression (2013) available at<https://www.osce.org/fom/99558?download=true>accessed 1 July 2016. 

[168] Amman v Switzerland, no. 27798/95, Judgement of 16 February 2000, ECHR, para. 50. 

[169] No. 27520/07, Judgement of 25 October 2011, ECHR. 

[170] Ibid.,para. 93. 

[171][1926] 269 US 385 (SC). 

[172] Ibid.,para.391. 

[173] [1972] 405 US 156 (SC). 

[174] Ibid.,para.162. 

[175] Fantasy Enterprises CC T/A Hustler the Shop v Minister of Home Affairs and Another, Case No. A159/96 (HC). 

[176] [2013] 2 LRC 321. 

[177] See (n. 125) above para.210. 

[178] The Kenya Section of the International Commission of Jurists, Journalists and the Rule of Law (2011) Konrad Adenauer Stiftung,17. 

[179] Const. Application No CCZ 78/12. 

[180] Ibid. 

[181] UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/ 34, para. 47, available at: <http://www.refworld.org/docid/4ed34b562.html> [accessed 27 May 2016]. 

[182]Alexander Adonis v The Philippines, Communication No. 1815/2008, adopted by the Committee at its 103rd session, 17 October–4 November 2011, paras. 7.7-7.10. 

[183] Case No 41/1997/825/1031 (Official Case No) App no 22678/93 (Application No) ECHR 1998-IV. 

[184] App No 23178/94 (Application No). 

[185] Application 004/2013. 

[186] Ibid.,para 171. 

[187] See (n. 34) above paras. 165-166. 

[188]Duffy MJ, KONATÉ V. BURKINA FASO: AN ANALYSIS OF A LANDMARK RULING ON CRIMINAL DEFAMATION IN AFRICA, J. INT’L MEDIA & ENTERTAINMENT LAW VOL. 6, NO. 1, 2015-2016 available at <http://www.swlaw.edu/academics/entertainmentlaw/journal/current/jimelarticle1duffy>[accessed 13 August 2016]. 

[189]William E. Adjei, THE PROTECTION OF FREEDOM OF EXPRESSION IN AFRICA:PROBLEMS OF APPLICATION AND INTERPRETATION OF ARTICLE 9 OF THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS, (LLM THESIS UNIVERSITY OF ABERDEEN, 2012) available at <http://digitool.abdn.ac.uk/webclient/StreamGate?folder_id=0&dvs=1476422709521~594>[accessed 25 July 2016] 24. 

[190] Ibid.,241. 

[191] See (n 144 above) 497, 1199. 

[192] See (n.30 above) para. 28. 

[193] Ibid.,para. 36 

[194] See (n.90) above para.98. 

[195] John Fleming, The Law of Torts (The Lawbook Co, 8th ed, 1998) 529. 

[196] R v Daily Mail (Editor); Ex Parte Factor (1928) 44 TLR 303, 306. 

[197] Wood v Cox (1888) 4 TLR 652, 654. 

[198] See (n. 34) above para 156. 

[199] Article 19, Defining Defamation, Principles on Freedom of Expression and Protection of Reputation (2000) London. Available at: https://www.article19.org/data/files/pdfs/standards/definingdefamation.pdf [accessed 1 July 2016]. Principle 8. 

[200] Ibid.,Commentary on principle 8. 

[201] See (n. 30) above para 38. 

[202] See (n. 48) above para 7. 

[203] B. Sidler, ‘Truth as a Defense’, 43 Chi.-Kent. L. Rev. 83 (1966). Available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol43/iss1/12[accessed 7 July 2016]. 

[204]See<http://www.nycourts.gov/history/legal-history-new-york/legal-history-eras-01/history-new-york-legal-eras-crown-zenger.html> accessed 29 July 2016. 

[205] Michael E. Tigar, The Trial of John Peter Zenger, A Play in Five Scenes (1986). Available at: https://www.nycourts.gov/history/legal-history-new-york/legal-history-eras-01/History_Trial-John-Peter-Zenger-Play.pdf [accessed 25 June 2016]. 

[206] See John Peter Zenger: A Brief Narrative of the Case and Trial of John Peter Zenger (1736).available at: https://is.muni.cz/el/1423/jaro2011/ZUR328/um/6406048/6406050/zenger.pdf [accessed 25 June 2016]. 

[207] Application no. 11798/85, available at: http://www.hraction.org/wp-content/uploads/castells_v_spain.pdf [accessed 1 August 2016]. 

[208] See https://www.article19.org/resources.php/resource/2308/en/castells-v.-spain [accessed 3 August 2016]. 

[209] See http://www.hrcr.org/safrica/expression/ECHR_Castells.htm [accessed 3 August 2016]. 

[210] Dinah Shelton, Balancing Rights and responsibilities: Human Rights Jurisprudence on Regulating the Content of Speech, in HUMAN RIGHTS: LIMITATIONS AND PROLIFERATION 211 (Peter Wahlgren ed., 55 Scandinavian Studies in Law 2010). 

[211] Romesh Thappar vs The State Of Madras (1950) AIR 124, 1950 SCR 594. 

[212] Article 19, ‘Statement on the right to communicate’ Global Campaign for Free Expression. London February 2013. Available at<https://www.article19.org/data/files/pdfs/publications/right-to-communicate.pdf>accessed 1 June 2016. 

[213] Centre for Democracy and Technology, “REGARDLESS OF FRONTIERS:” THE INTERNATIONAL RIGHT TO FREEDOM OF EXPRESSION IN THE DIGITAL AGE’ available at<https://cdt.org/files/pdfs/CDT-Regardless_of_Frontiers_v0.5.pdf >accessed 17 July 2016. 

[214] Paul Sturges, ‘LIMITS TO FREEDOM OF EXPRESSION? CONSIDERATIONS ARISING FROM THE DANISH CARTOONS AFFAIR’ IFLA Journal, 32 (2006) 181-188. Available at<http://www.ifla.org/files/assets/faife/publications/sturges/cartoons.pdf>accessed 2 June 2016. 

[215] THE ACCESS TO INFORMATION ACT, 2016 available at<http://www.africafoicentre.org/index.php/foi-laws/218-kenya-access-to-information-act-2016/file>accessed 25 October 2016. 

[216] University of Oslo, ‘FREEDOM OF EXPRESSION AND DEMOCRATIC PROCESS: An Analysis of Laws and Policies relating to the Right of Freedom of Expression in Zanzibar’ available at <https://www.duo.uio.no/bitstream/handle/10852/35088/102606.pdf?sequence=1>accessed 20 October 2016. 

[217] Subramaniany Swamy v Union of India, Minster of Law & others, Writ (Criminal) No. 184 of 2014, para 91. 

[218] Speiser v Randall (1958) 257 US 513 (530). 

[219] Article 19, ‘Putting Expression Behind Bars: Criminal Defamation and Freedom of Expression’ Background Paper for EU NGO Forum London (8-9 December 2005) available at< https://www.article19.org/data/files/pdfs/conferences/criminal-def-eu-ngo-paper.pdf>accessed 15 October 2016. 

[220] Kaminsky, Alan (1982) "Defamation Law: Once a Public Figure Always a Public Figure?," Hofstra Law Review: Vol. 10: Iss. 3, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol10/iss3/6>accessed 25 July 2016. 

[221] The International Press Institute (IPI), ‘KENYA: IPI calls on government to repeal criminal defamation laws’ at<http://www.pambazuka.org/security-icts/kenya-ipi-calls-government-repeal-criminal-defamation-laws>accessed 15 October 2016. 

[222] Edward Wanyonyi, Libel Verdicts: Are they new attempts at Press Censorship? The Standard (September 10, 2016) 15. 

[223] HCCC No.41068 of 1999. 

[224] HCCC No. 5 of 2000. 

[225] HCCC No.956 of 2003. 

[226] HCCC No.375 /1997. 

[227] HCCC No.102 of 2000. 

[228] [2005] 2 KLR 332. 

[229] Reference (1995) 20 EHRR 442. See<http://www.5rb.com/case/tolstoy-miloslavsky-v-united-kingdom/> accessed 21 September 2016.