Geoffrey Andare v Attorney General & 2 others [2016] eKLR
97. As was observed in the CORD case, the state is entitled to impose limitations on the right to
freedom of expression. However, such limitations must be on grounds which are permitted in the
Constitution, which under Article 33(2) are propaganda for war, incitement to violence, hate
speech, or advocacy of hatred. In that case, the Court stated as follows:
“[259] As we understand it, the State can (and we believe, does) penalize the broadcast or
publication of any expression that falls under Article 33(2), namely propaganda for war,
incitement to violence, hate speech and advocacy to hatred. This new offence under the Penal
Code that seeks to punish “insulting, threatening, or inciting material or images of dead or
injured persons which are likely to cause fear and alarm to the general public or disturb public
peace” thus limits the freedom of expression to a level that the Constitution did not contemplate
or permit, and in a manner that is so vague and imprecise that the citizen is likely to be in doubt
as to what is prohibited.”
98. I agree with the view expressed in the CORD case. Section 29 imposes a limitation on the
freedom of expression in vague, imprecise and undefined terms that go outside the scope of the
limitations allowed under Article 33 (2) of the Constitution. The respondents have not been able
to show that such limitations are permissible under Article 24, or that they are the least restrictive
means available. If the intention is to protect the reputations of others the prosecution of mean
spirited individuals who post defamatory statements on social media does not achieve that. I
believe 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.
99. In the circumstances, it is my finding that the provisions of section 29 of the Kenya Information
and Communication Act are also unconstitutional for violating Article 33 of the Constitution, and
therefore null and void.
Absence of Mens Rea
100. The petitioner and Article 19 argue that section 29 of the Act is unconstitutional and violates
Article 50(2)(n). Their argument, as I understand it, is, first, that the absence of the requirement
of mens rea offends the central thought that a defendant must be blameworthy in mind before he
can be found guilty.
101. I believe that it is not in dispute that crimes involve both blameworthy acts and blameworthy
mental elements or state of mind on the part of the accused person. In R. Balakrishna Pillai vs
State of Kerala, Criminal Appeal No. 372 of 2001, the Indian court addressed its mind to the
question of mens rea vis-à-vis criminal offences. While quoting Blackstone, the court observed
that:
“To consider yet another aspect, the general principle of criminal jurisprudence is that element of
mens rea and intention must accompany the culpable act or conduct of the accused. In respect
of this mental element generally, the Blackstone's Criminal Practice describes it as under:
"In addition to proving that the accused satisfied the definition of the actus reus of the particular
crime charged, the prosecution must also prove mens rea, i.e., that the accused had the
necessary mental state or degree of fault at the relevant time. Lord Hailsham of St Marylebone
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