Geoffrey Andare v Attorney General & 2 others [2016] eKLR
“(A) norm cannot be regarded as “law” unless it is formulated with sufficient precision to enable
the citizen to regulate his conduct: he must be able- if need be with appropriate advice- to
foresee, to a degree that is reasonable in the circumstances, the consequences which a given
situation may entail.”
79. As the Court observed in the CORD case, the principle of law with regard to legislation limiting
fundamental rights is that the law must be clear and precise enough to enable individuals to
conform their conduct to its dictates. The Court in that case cited with approval the words of
Chaskalson, Woolman and Bishop in Constitutional Law of South Africa, Juta, 2nd ed.
2014, page 49 where the learned authors stated that:
“Laws may not grant officials largely unfettered discretion to use their power as they wish, nor
may laws be so vaguely worded as to lead reasonable people to differ fundamentally over their
extension.”
80. In my view, the provisions of section 29 are so wide and vague that they offend the requirements
with regard to law that carries penal consequences.
Limitation of the Right to Freedom of Expression
81. The petitioner and Article 19 have argued that section 29 of the Act limits the right to freedom of
expression. They argue that because of the fact that its provisions are so vague and overbroad, it
has a chilling effect on the right to freedom of expression.
82. The respondents do not dispute that the provision limits freedom of expression. They argue,
however, that its provisions are a justifiable limitation to the right of freedom of expression which
is guaranteed under Article 33 in the following terms:
1. Every person has the right to freedom of expression, which includese. Freedom to seek, receive or impart information or ideas;
f. Freedom of artistic creativity; and
g. Academic freedom and freedom of scientific research.
2. The right to freedom of expression does not extend toa. Propaganda for war;
b. Incitement to violence;
c. Hate speech; or
d. Advocacy of hatred thati. Constitutes ethnic incitement, vilification of others or incitement to cause harm; or
ii. Is based on any ground of discrimination specified or contemplated in Article 27 (4).
3. In the exercise of the right to freedom of expression, every person shall respect the rights
and reputation of others.
83. It has been recognized that freedom of expression is an essential right, important for the
enjoyment of other rights, and for a democratic society to thrive. In Charles Onyango-Obbo and
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