Geoffrey Andare v Attorney General & 2 others [2016] eKLR
17. In his written submissions, the petitioner contended, with respect to the question of mens rea,
that section 29 does not provide any ascertainable standard of guilt to protect against arbitrary
enforcement; that there is no indication of mens rea under the section, and that the net is cast so
wide that the innocent are caught up as well. The petitioner has relied on the decision in Elonis
vs United States [2015] 13 183 in support of his argument that the absence of mens rea offends
the central thought that a defendant must be blameworthy in mind before he can be found guilty,
a concept courts have expressed over time through various terms such as mens rea, scienter,
malice aforethought, and guilty knowledge, among others. He submits further that although there
are exceptions, the general rule is that a guilty mind is a necessary element in the indictment and
proof of every crime.
18. The petitioner also called in aid the decision of the five-judge bench of this Court in the case of
Coalition for Reforms & Democracy & Others vs Republic of Kenya & 10 Others, Petition
No 628 of 2014 consolidated with Petition Nos 630 of 2014 & 12 of 2015 and the decision in
the Canadian case of R vs Oakes [1986] 1 SCR 103 to submit that section 29 unjustifiably limits
freedom of expression. In his view, as was stated in General Comment No. 34
(CCPR/C/GC/34) and in various decisions, inter alia, Charles Onyango-Obbo and Another vs
Attorney General [2004] UGSC 1, S vs Mamabolo [2001] ZACC 17 2001 and as expounded
by Ronald Dworkin in Freedom’s Law (1996) 200, freedom of expression is a right that is
essential to the enjoyment of other rights, for implicit in it is the right to receive information on the
basis of which one can make decisions and choices. It was therefore not a right to be interfered
with lightly.
19. According to the petitioner, the logical purpose for the limitation in section 29 must be to facilitate
the development of the information and communications sector, particularly telecommunications
services. It was his submission that the section fails the second limb of the Oakes test as the
State has failed to show the nature and extent of the limitation to be reasonable or demonstrably
justified.
20. In addition, it was his submission, based on the decision in Chirau Ali Makwere vs Robert M.
Mabera [2012] eKLR, that because of the deleterious effects of propaganda for war, incitement
to violence, hate speech and advocacy for hatred, sanctions are imposed on such conduct
through criminal law and hence the delicate balance between the freedom of expression and the
rights and fundamental freedoms of others.
21. He expressed the view that the need to ensure that the enjoyment of rights and fundamental
freedoms by any individual does not prejudice the rights and fundamental freedoms of others is
provided for in various legislation such as the Defamation Act, Cap 36 Laws of Kenya; the
National Cohesion and Integration Act, 2008; and the Penal Code, Cap 63 Laws of Kenya.
Section 29, in his view, has very little to do with the balancing act.
22. The petitioner therefore urged the Court to grant the following prayers:
a. A declaration that Section 29 of the Kenya Information and Communication Act, Cap 411A
is unconstitutional and invalid for unjustifiably violating Article 33 and 50 (2) (n) of the
Constitution;
b. A declaration that the continued enforcement of section 29 by the 2nd respondent against
the petitioner, violates the Bill of Rights and therefore militates against the public interest,
the interest of the administration of justice and constitute an abuse to the legal process;
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