Kenyans still deserve a chance for dialogue over the controversial Security Laws

The controversial Security Laws (Amendment) Act is now operational after the President signed into law the bill that preceded its legislation. Despite making a

few positive changes to the original bill, the final law still contains provisions that pose grave danger to fundamental rights and freedoms. The following are sections of the Act that Kenyans need to continue having dialogue on and demand that they be expunged on grounds of unconstitutionality: Section 15 of the Act amended the Penal Code by inserting a new section 66A which reads as follows—a person who publishes or causes to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace is guilty of a felony and is liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years or both, where the offence is committed by a media enterprise to a
fine not exceeding five million shillings.

The problem and, therefore, objection to this provision is that while its language is intended to protect socalled ‘good tastes’, the reality is that this provision has virtually introduced criminal libel through the backdoor and the target of such criminal libel is the media. It is important to point out that the Constitution under Article 34(b) has expressly prohibited criminal libel by stating that; the state SHALL not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination. Criminal libel has also been rejected by various continental and international law, treaties and conventions which Kenya has ratified, and which are protected under Article 2(5) and 2(6) of the Constitution.

Section 19 of the new Act has also amended the Criminal Procedure Code by inserting a new section 42A which, among other things, provides that the Prosecution may not disclose certain evidence on which it intends to rely on in criminal proceedings if the evidence, among other things, is “sensitive and it is not in the public interest to disclose.” This provision essentially limits the right under Article 50 of the Constitution (right to fair hearing). We find this to be an OUTRAGEOUS and UNACCEPTABLE provision because it is a fragrant violation of the Constitution since it purports to limit a right which is directly INSULATED against any form of limitation by Article 25 of the Constitution. We acknowledge that Article 24 of the Constitution of Kenya 2010 provides for enactment of legislation that may lawfully limit a right or fundamental freedom under the Bill of Rights. However, we must point out that the powers to enact law to limit a right or fundamental freedom under Article 24 is the exception and not the rule.

For avoidance of doubt, we reproduce provisions of Article 24 as follows:

24(1) A right or fundamental freedom in the Bill of Rights shall NOT be limited except by law, and then only to the extent that the limitation is reasonable and justified in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including—

a. the nature of the right or fundamental freedom;

b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the need to ensure that the enjoyment of the rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and e. the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

 

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