Geoffrey Andare v Attorney General & 2 others [2016] eKLR
352. Third, there must be a proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the objective which has been identified
as of "sufficient importance".
90. I have set out above the nature of the right to freedom of expression, and its importance in a free
and democratic society. The respondents have asserted that the limitations in section 29 are
justified in a free and democratic society. The questions that beg, bearing in mind the express
provisions of Article 24 and the criteria in R vs Oakes are: what is the purpose of the limitation,
and how important is it? What is the relationship between the limitation and its purpose? Are
there less restrictive means to achieve the purpose intended?
91. The respondents’ argument, as I understand it, is that the purpose of the provision in the
legislation was to protect the reputation of others. As a result, section 29 was inserted to
criminalise the use of “licensed telecommunication systems.”
92. I have set out elsewhere above the stated purpose of the Kenya Information and
Communication Act. Aside from being intended to establish the Communication Commission of
Kenya (now, subsequent to the 2013 amendments, the Communication Authority of Kenya), and
to provide for the transfer of the assets of the former Kenya Posts and Telecommunication
Corporation to the Commission, its stated objectives relate to the regulation of the
telecommunication system in Kenya, and “to facilitate the development of the information
and communications sector (including broadcasting, multimedia telecommunications and
postal services) and electronic commerce”.
93. As section 24, which deals with the issuance of telecommunication licences illustrates, the Act
may not have been intended to apply to individual users of social media or mobile telephony.
Section 24 titled “Telecommunication licences” provides as follows:
(1)
The Commission may, upon application in the prescribed manner and subject to such
conditions as it may deem necessary, grant licences under this section authorising all persons,
whether of a specified class or any particular person to—
(a)
operate telecommunication systems; or
(b)
licence.
provide telecommunication services, of such description as may be specified in the
94. Individuals such as the petitioner and others who post messages on Facebook and other social
media do not have licences to “operate telecommunication systems” or to provide
telecommunication “as may be specified in the licence.”
95. Be that as it may, section 29 imposes penal consequences in terms which I have found to be
vague and broad, and in my view, unconstitutional for that reason. Even if they were not, could
the provision be permissible under Article 24?
96. The respondents were under a duty to demonstrate that the provisions of section 29 were
permissible in a free and democratic society. They were also under a duty to demonstrate the
relationship between the limitation and its purpose, and to show that there were no less
restrictive means to achieve the purpose intended. They have not done this.
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