Geoffrey Andare, a web developer was charged under Section 29 of the Kenya Information and Communication (KICA) Act, the same section that is being used to intimidate bloggers but quickly sought to orders to declare this charge erroneous.. Before Geoffrey, Abraham Mutai was held over the same charge, but later released. Robert Alai has also been charged under the same charge. At the same time, Adika Adeya has also been charged under the same charge, a case which will be heard in August.
On or about the 23rd March this year, Geoffrey Andare (Petitioner), a web developer for a public institution and volunteer in Mathare with various CBOs but a friend of the Canada Mathare Education Trust (CMET) published on his Facebook page, criticism of the NGO’s Kenya’s representative, Titus Kuria Ndoka alias Papito Tito for offering scholarships for sexual favors. Titus Kuria and Benedict Kiage, his accomplice are CMETRust Representatives in Kenya.
He wrote, among other things,
“You don’t have to sleep with the young vulnerable girls to award them opportunities to go to school, that is wrong! Shame on you”
His post was based on reliable and consistent complaints that he had received in the course of his work as a volunteer social worker at CMET some of which he has made audio recordings of.
Consequently, he was charged on 28th March for ‘misuse of a telecommunications system’ under Section 29 of KICA. He pleaded not guilty.
With the help of lawyer friends, he filed a petition challenging the constitutionality of the Section 29 and an application for conservatory orders under a certificate of urgency.
Geoffrey says “I am being victimized. This charge limits my freedom of expression. What I wrote was the truth. I received facts and interviewed those who he has sought sexual favors before giving them scholarships.”
In this case, the licensed telecommunications equipment being referred to is Facebook. Geoffrey feels that the police should instead follow-up these issues and investigate other than follow him. He however decided to have the post private so that the case is not tied to the organization he works for.
It is this case that is subject to a constitutional petition challenging the constitutionality of Section 29. Article 19, a civil society organization has applied to be enjoined in the case as Interested Party in support of the petition. Article 19 applied because the matter touches on freedom of expression as per its mandate.
On 5th May, 2015, the court heard the 2 applications by Geoffrey and Article 19 for conservatory orders staying the criminal case and the application to join respectively. Both orders sought were granted and Judge Mumbi Ngugi gave the Attorney General and the Director of Public Prosecutions 14 days to reply to the petition after which the Petitioner and the Interested Party are to reply and file submissions in another 14 days.
The matter will be mentioned again on 12th June, 2015 to confirm compliance of orders and give directions on the way forward.
Demas Kiprono, the Senior Programmes Officer – Litigation Counsel at Article 19 asserted,
“Among the orders we are seeking is that the section 29 of KICA is declared unconstitutional because it does not comply with Article 33 (2) of the Constitution in that its provisions falls outside the prescribed criteria for limiting the right to freedom of expression.”
Article 33 (1) (a) provides that every person has the right to freedom of expression which includes the freedom to seek, receive impart information or ideas.
Article 33 (2) comes in to state that the right to freedom of expression does not extend to a) Propaganda for war;
- b) Incitement to violence;
- c) Hate speech; or
- d) Advocacy for hatred that ;
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm or
(ii) based on any ground of discrimination as per Article 27.
Article 19 therefore contends that Section 29 of KICA is an unconstitutional limitation to the right to freedom of expression because it does not fall within the permitted (a,b,c and d above) limitations under Article 33 (2) and thus should be struck out of Kenyan statute books.
Article 19 further contends that the section is vague and unclear and thus unenforceable because an average citizen would not be able to know what exact conduct is tantamount to an offence. What exactly is “misuse of a licensed telecommunication device?’ at what point does normal use become misuse?
The organization is however not going to represent the Petitioner per say but as Interested Party in support of the petition, we will be able to safeguard and bolster his legal position in this matter.
How this case puns out will have great implication not only freedom of information, but also reducing intimidation of bloggers.