A judge has declared a section of the Kenya Information Communication Act, which criminalises publication of obscene information online, unconstitutional.
Justice Wilfrida Okwany ruled Wednesday that Section 84 (D) of the act is vague and broad, making it difficult for an accused person to defend themselves.
NYAKUNDI VS WAIGURU
The petition was filed by blogger Cyprian Nyakundi, who faces several charges after posting obscene information against Kirinyaga Governor Anne Waiguru, last year.
The blogger was charged in April 2018 before a Kiambu court. He is also facing similar charges before a Nairobi court, after posting remarks on his Twitter account, against Interior CS Fred Matiang’i.
He later challenged the charges and Justice Okwany agreed stating that the section does not explain who and how it will determined, who has been influenced by the posts.
She further said the section was against Article 33 on Freedom expression and Article 25 (C) on the right to fair trial. The judge said a law, which creates an offence should not be vague as it should enable an accused person to defend themselves.
The blogger was accused of publishing obscene information on electronic media contrary to the KICA. It was alleged that on April 16, 2018, through his Twitter account, published various posts against Ms Waiguru.
The said Section reads, “any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding Sh200,000, or imprisonment for a term not exceeding two years, or both”.
The judge ruled that circulation of ideas should not be restricted and people cannot be prohibited from enjoying their rights.
She said enforcing such an Act is unconstitutional and a violation of his rights.