Every person has the right to freedom of expression, which includes—
freedom to seek, receive or impart information or ideas
This is from Article 33 of the Kenya Constitution. Article 34 says ‘Freedom and independence of electronic, print and all other types of media is guaranteed’.
The principle behind the right is not that ‘sticks and stones may break my bones, but words can never hurt me’; we all know that words can be painful, and worse, if one’s reputation is harmed. It is more concerned with the importance of speech for the functioning of a democratic society. Over the centuries society has learned that dominant groups fear ideas more than, perhaps, anything else.
As it happens the High Court recently had to deal with freedom of speech – in the Security Laws case, and dealt well with the issues.
Think of the rights recognised by the Constitution as being a series of umbrellas: each shaped like a right. In the case of freedom of expression the umbrella has a piece cut out of it: it does not shield you against any law that penalises you for propaganda for war; incitement to violence; hate speech; or stirring up hatred on the basis of ethnicity or any other personal characteristic (such as religion, gender, age etc.). The Constitution does not itself make these objectionable forms of expression a crime; all it says is that, if you wish to express any of these things, and the law forbids it, you cannot find any defence in the idea of a human right to freedom of expression. In fact the law does prohibit, incitement and hate speech, but not propaganda for war. And only hate speech based on ‘colour, race, nationality (including citizenship) or ethnic or national origins’ are crimes under our law.
But apart from these excisions from the protective umbrella, is there complete freedom of expression? Absolutely not. Most rights can be limited; the protective umbrella of the Constitution may be withdrawn (the right not to be tortured and the right to a fair trial are exceptions to this). But withdrawn only by law and only if this is reasonable, which means, says the Constitution ‘reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’.
The Constitution sets the framework for this analysis.
The Security Laws Act tried to change the law to include these new crimes:
broadcasting or publishing ‘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’ (new section 66A of the Penal Code).
making any statement that is ‘likely to be understood’ as encouraging or inducing someone else to commit an act of terrorism (new s.30A of Prevention of Terrorism Act).
And it would make it a crime to do the following without authorisation from the National Police Service:
broadcasting any information which undermines investigations or security operations relating to terrorism OR
publishing or broadcasting photographs of victims of a terrorist attack (in new s.30F of Prevention of Terrorism Act).
Some people reacted to these amendments by saying ‘This is a good idea. We should not have to see disgusting and distressing images of victims.’ Others thought some were intended to deprive terrorists of what Margaret Thatcher used to call (when speaking about the Irish Republican Army) ‘tAhe oxygen of publicity’.
Before we look at how the court dealt with this, it’s worth thinking about the words. You might like to think about the phrases I have underlined and ask if they are clear and whether you would understand from reading them what you are not supposed to do!
The court tells us that the Attorney General argued that Article 33 ‘prohibits publication of information that extends to propaganda for war, incitement to violence and hate speech’. That’s interesting: we’ve just seen that it does nothing of the sort. What it does is to allow a law to penalise any of these without facing a freedom of expression analysis. But the court commented while the new offences created might cover these activities, the new offences cover much more.
Then the AG said, ‘freedom of expression has been abused by the media in publishing pictures of fatally injured people and of security operations, to the advantage of the publicity sought by terrorists’. S. 66A says nothing about security operations as such. And, though he seems to be thinking about the ‘oxygen of publicity’; the phrases in the Act ‘fear and alarm’ and ‘disturbing public peace’ don’t suggest that any concern about ‘oxygen’ motivated the change in the law.
Not a great performance by our constitutionally mandated protector of the rule of law and defender of the public interest!
The court then worked its way meticulously through the intellectual process required by the Constitution. The first question is whether any protected rights have been limited by the law; here the AG agreed that they had. Then: are those limitations justified?
Under Article 24, the place to start is with the right and how important it is. The court drew on various sources on the importance of freedom of expression, including this (from State vs Mamabolo in South Africa), where Justice Kriegler was comparing his country with the US:
Freedom of expression … is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought-control, however respectably dressed.
And from the legal philosopher, Ronald Dworkin:
(F)reedom of speech is valuable… because it is an essential … feature of a just political society that government treat all its adult members … as responsible moral agents. That requirement has two dimensions. First, morally responsible people insist on making up their own minds what is good or bad in life or in politics, or what is true and false in matters of justice or faith. Government insults its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions.
Next the court considered the purpose of the limitation on rights of expression. The Bill went to Parliament accompanied by a short, uninformative – my words, not the court’s –‘Memorandum of Objects and Reasons’. This said nothing about terrorism in relation to the Penal Code, and, in connection with the Prevention of Terrorism Act, it said, laconically, ‘Publication of offending material is also prohibited’. In court the talk was all about terrorism. And the court (unsurprisingly) agreed that this was important.
Having a good purpose is not the end of the matter – although the government tended to argue as though invoking ‘terrorism’ would clinch it. As the court said, the government had to satisfy the court that limiting rights was ‘justified by the realities it is confronted with’, and that the limitations on rights were logically connected to the purpose.
How, the court asked, ‘is limiting freedom of expression by prohibiting certain publications so as not to cause fear or alarm to the public, or not to disturb public peace, … connected to fighting terrorism and national security?’ The court was not denying that publicity might aid the cause of terrorists, but the arguments placed before the court did not make the connection between that factor and the rules in the new laws.
Did you find the words underlined very clear about what behaviour is forbidden? The court said ‘a law that limits a fundamental right and freedom must not be so vague and broad, and lacking in precision, as to leave a person who is required to abide by it in doubt as to what is intended to be prohibited, and what is permissible’.
The court agreed that ‘the use of graphic and shocking photographs in both broadcast and print media’ was a cause for concern, but that there are other ways in the law to deal with this.
There is another element in this assessment of whether a limit on a right is reasonable: whether the legitimate purpose of the law could be achieved in a way that did less harm to rights. But the court in this case did not need to go into this point.
On this topic of media, the court’s last word was, ‘we believe that rather than enacting legislation that goes against the letter and spirit of the Constitution and erodes the fundamental rights to freedom of expression and of the media, an approach that brings together the State and the media in finding a way to cover terrorism without compromising national security should be explored’
Finally, if you want to read the entire judgment you can find it at http://kenyalaw.org/caselaw/cases/view/106083/