MEDIA LAW CAT

1. INTRODUCTION

A democratic society cannot exist without the freedom to express new ideas and to put
forward opinions about the functioning of institutions.1

The court in Cyprian Andama v Director of Public Prosecution & another2 cited in
approval two cases that depict the importance of freedom of expression. The first case
being one by the Supreme Court of the United States, New York Times v Sullivan3
wherein it was held that the circulation of ideas should be uninhibited, robust and wide
open in a democratic society. The second case is the case of Edmonton journal v
Alberta4, where the Supreme Court of Canada underscored the importance of freedom
of expression; it stated that in a democratic society, the right to freedom of expression
is of utmost importance.

The court in the Mutunga v Republic5 case held that constitutional rights and freedoms
are subject to limitation designed to ensure that the enjoyment thereof  by any individual
does not prejudice the rights and freedoms  of others or public interest.

It is on the basis of the legitimate limitation of rights6 that Hate speech is prohibited
while obscene and pornographic articles are barred from being possessed for the
purpose of distribution or publication.

The later pages of this paper will seek to interrogate media regulation relating to hate
speech, obscene and pornographic articles. We will critically analyze the Kenyan legal
regulation on hate speech, obscene and pornographic articles as well as the relevant
international regulations in this respect.

3. OBSCENITY

1
Edmonton journal v Alberta [1989] 45 CRR 1
2
;Article 19 East Africa (Interested Party) [2019] eKLR
3
376 U.S 254 (1964) 
4
[1989] 45 CRR 1
5
[1986] KLR 167 
6
Article 24 of the Constitution of Kenya
Defining obscenity

The Kenya Information and Communication Act (KICA), 20097 attempted to define
obscenity. Section 84 d of the act established that

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 two
hundred thousand shillings or imprisonment for a term not exceeding two years,
or both.

This definition was questioned in the case of Cyprian Andama v Director of Public
Prosecution & another8 where the petitioner challenged the constitutional validity of
Section 84D of the act on the basis that it created an offence by criminalizing the
publishing of obscene information in electronic form in vague and overbroad terms, and
that in turn, the chilling effect produced by the offence limited the constitutionally
guaranteed freedom of expression.

The main issue for determination was whether the impugned section of KICA is
unconstitutional.

The court found that  the impugned section provided for an offence in such broad and
unspecific terms such that the person charged under it may not know how to answer to
it; this because both the impugned act and section did not define the meaning of the
words; “obscene” or “ any material which is lascivious or appeals to the prurient
interest” and neither does it explain how or who shall determine if the publication will
have “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” thereby leaving the words to the subjective interpretation by the
investigative agencies, the prosecution or the court that will ultimately try the case.

7
Act Cap 411A of the Laws of Kenya
8
Article 19 East Africa (Interested Party) [2019] eKLR
The court held that the impugned section was unconstitutional to the extent that it
infringed on the citizens right to freedom of expression guaranteed under Article 33 of
the Constitution and derogated the right to a fair hearing by providing for an offence in
such broad and unclear terms which made it subject to the arbitrary and subjective
interpretation by the Director of Public Prosecution or the court contrary to Article
50(2)(b) of the Constitution.

The Bloggers Association of Kenya (BAKE) v Attorney General & 3 others9case is a

similar case where the petitioner sought a declaration that section 37 inter alia10 of the
computer misuse and Cybercrimes Act 2018 is invalid as it violates, infringes and
threatens the freedom of expression and is unjustified under Article 24 of the
constitution.

The petitioner prayed that the court make a declaration that Sections 37 of the
Computer Misuse and Cybercrimes Act is unconstitutional

The court in its judgment established that the offence created by section 37 of the
Act is not new as the distribution of obscene images has always been criminalized
conduct and that the provisions could not be termed as unconstitutional since the
Cybercrimes Act did not give a statutory definition of obscene

In the Kenyan regime, there is no statutory definition of the term obscene.

Foreign definitions of obscenity

The literal meaning of obscene is offensive, rude, filthy, lewd or disgusting according to
accepted moral standards.11 In law, the meaning is in some respects, narrower and, in
other respects, possibly wider.12

The difficulty in legally defining obscenity was highlighted in the case of Miller vs
California where the court acknowledged that obscenity case law differs from

9
Article 19 East Africa & another (Interested Parties) [2020] eKLR
10
Sections 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52, and 53
of the computer misuse and Cybercrimes Act 2018
11
https://www.merriam-webster.com/dictionary/obscene
12
Obscene communication and publication offences- Ormerod & Laird: Smith, Hogan, and Ormerod's
Criminal Law, 15th edition Oxford University Press, 2018. 30
jurisdiction to jurisdiction and further on a case to case basis. It thus follows that there
cannot be a ‘one fits all approach’ and therefore it would not be practicable to give one
accepted legal definition of what constitutes ‘obscene’ and ‘intimate’. The words will
therefore be construed on a case to case basis through interpretation by the courts.

A similar position was taken by Kenyan courts in Bloggers Association of Kenya (BAKE)
v Attorney General13 the where the court held that the definition of obscenity is
dependent on the subject and the society in context and therefore the same will still be
subject to interpretation by the courts on a case by case basis.

The approach taken by English courts was laid down in the case of R v Hicklin.14 This
case established the original test of obscenity and held that the court must consider
whether the tendency of the matter charged as obscenity is to deprave and corrupt
those whose minds are open to such immoral influences and into whose hands such
publications may fall.

The UK Obscene publications act of 1959 codifies the definition of obscene under
section 1. It denotes an article to be obscene if any one of its items taken as a whole
tends to deprave or corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.

An article is defined under that act to mean anything containing a matter to be read or
looked at for instance records, videos or films.

In the R v Goring15 case it was held that if any one item was found to be obscene, the
whole article would be deemed as obscene. This case underscored the fact that the
article is to be considered as a whole but where it is in distinct sections it is to be
looked at section by section.16

Types of obscene content include sexual and pornographic material, extremely violent
articles and articles containing precise details of drug taking.

13
& 3 others; Article 19 East Africa & another (Interested Parties) [2020] eKLR
14
[1868] L.R 3 Q.B 360
15
[1999]
16
See also R v Anderson [1971]
Considerations to take when determining whether an article is obscene

Who is likely to read, see or hear the article? Considering that audience, will those likely
viewers tend to be morally corrupted or depraved by it? If yes will those who tend to be
corrupted by be more than negligible number? If yes, is the article so repulsive that, in
fact, it is likely to discourage such behavior if no, the article may be obscene.

The Mohamed Ahmed v Republic17 case can be cited in this regard as the appellant
was accused of being in possession of and conveying obscene naked photographs of
the complainant for the purpose of distribution.

The court found that for liability to accrue, the prosecution was duly bound to prove the
following facts:-

i. That the Applicant as the accused did convey the material.

ii. That the material was obscene.

iii. That the material was capable of corrupting the morals of the person it was
conveyed to

On conveyance, the prosecution needed to lead evidence to prove that it was the
accused and nobody else who conveyed the material to the complainant. The
prosecution needs to tender evidence showing that the photographs were obscene or
morally disturbing to the persons it was conveyed to.

In the aforementioned case, the appellate court found that the prosecution failed to
tender evidence showing that the accused conveyed the material and that the
photographs were obscene or morally disturbing to the persons it was conveyed to. For
that reason the conviction of the trial court is set aside and in its place substituted a
decision acquitting the accused person. Be that as it may, the considerations taken by
the court are noteworthy.

OFFENCES AND SANCTIONS

17
[2018] eKLR
The limitation of publication of obscene articles is predominantly governed by national
law.

Being in possession of obscene photographs for the purpose of distribution is contrary

to Section 181(1) (a) of the penal code while conveying obscene photographs contrary
to Section 181(1)(b) of the penal code.

The penal code stipulates that the person committing acts contrary to sections 181(1)
(a) and 181(1)(b) is guilty of a misdemeanor and is liable to imprisonment for two
years or to a fine of seven thousand shillings.

Further under section 181 (3) and (4) a court may order the destruction of any matter
or thing made, possessed or used for the purpose of that offence. This was the case
in UK for the book titled ‘Lord Horror’ by David Britton. The book contained graphic and
extremely violent depictions and the court ordered that all copies of the book be
destroyed.

Section 37 of the Computer Misuse and Cybercrimes Act establishes that a person
who transfers, publishes, or disseminates, including making a digital depiction available
for distribution or downloading through a telecommunications network or though any
other means of transferring data to a computer, the intimate or obscene image of
another person commits an offence and is liable, on conviction to a fine not exceeding
two hundred thousand shillings or imprisonment for a term not exceeding two years, or
to both

DEFENSES

The defense of public good and innocent publication or possession can be raised to
escape liability for being in possession of obscene photographs for the purpose of
distribution or conveying obscene photographs.

The defense of public good

The defense of public good holds that no conviction or order of forfeiture shall be made
 18
where the publication of the article was justified as being for the public good. If the
article can be proved to be for the interest of learning then the accused shall not be
guilty. The scope of ‘learning’ is limited to scholarly activities and thus sex education
doesn’t fall within the scope of learning.19

The R v Calder20case established that the court take into proper consideration the merit
of the article vis a vis the number of people likely to be depraved and the nature of the
article’s corruption.

This defense is widely interpreted by Kenyan courts in defamation cases21

The defense of innocent publication

Under this defense the accused will be required to prove that he did not know nor
should have known the contents of the article. The accused is to show that he had not
examined the article in respect of which he is charged and had no reasonable cause to
suspect that it was such that his publication of it would make him liable to be
convicted.22

THE ‘MAVI YA KUKU’ STATEMENT

Kenyan political rhetoric is notoriously full of what would pass as insults. The Late
Former President Mwai Kibaki was fond of using some phrases like ‘Mavi ya kuku’ and
‘Pumbavu’. ‘Mavi ya kuku’ when translated to English means ‘chicken droppings’ while
‘pumbavu’ means ‘stupid or foolish’.

Arguably, the test of obscenity can be met with reference to the two phrases the late
former president was fond of making. This is following the fact that these phrases can
lead to the corrupting the morals of the person it was conveyed to. Being public figure
the late former president’s speeches reached a vast majority of Kenyans and that

18
Section 4 of the UK Obscene publications act of 1959
19
Media law- Peter Carrey, nick Armstrong… - Sweet & Maxwell
20
[ 1965]
21
Jacqueline Okuta & Another vs Attorney General  & 2 Others (2017)eKLR,
https://pmlegalke.wordpress.com/2018/09/27/a-look-at-the-public-interest-defence-in-defamation-and-
how-it-will-affect-defamation-law-in-kenya/
22
Media law- Peter Carrey, nick Armstrong… - Sweet & Maxwell
included children. It can be argued that once a child heard the phrase ‘Mavi ya kuku’ or
‘Pumbavu’ coming from their head of state, they may adopt the use of such language in
their formal and informal interactions.

The defense of public good may be invoked in this regard as the statements were used
to shun vices in the society. The ‘mavi ya kuku’ and ‘pumbavu’ statements were made in
the reference to incompetent government officials

The case of R v Anderson23 can be placed reliance upon as it was held that some
statements are not to be treated too seriously. In this context the ‘mavi ya kuku’ and
‘pumbavu’ statements can be taken on a light note having regard to the context and the
purpose for which they were made.

The case was different for eight former students of Ambira Boys High School in Siaya
who were arrested for allegedly insulting Education CS Amina Mohamed and her Interior
counterpart Fred Matiang’i. The Ambira boys bragged that they cheated in their KCSE
exams, in an apparent attempt to mock the government’s heavy securitization of the
tests. They recorded themselves and published the video on social media. It went viral

Media houses edited out parts of the video clip they thought were too graphic. Some
newspapers said the insults were “unprintable” because they referred to parts of the
body so-called polite society considers shameful.

The extent of the use of insulting words and the purpose for which they were used was
of an offensive, rude and filthy nature. It downplayed the efforts of the government to
curb examination malpractices in a lewd manner and if left unaddressed would
encourage the tolerance of use of insulting words by children and young adults. The ex-
candidates were remanded for seven as police continued conducting investigations and
the DPP later dropped charges against the 16 boys due to lack of evidence.

The two case excerpts show that what is obscene is indeed to be determined on a case

23
[1971]
 24
by case basis as earlier alluded to.

4. PORNOGRAPHY

Media regulations on pornography

Pornography can be defined as printed or visual material containing the explicit

description or display of sexual organs or activity intended to stimulate sexual
excitement. It is common knowledge that the internet contains a great deal of
pornographic material. Much of this type of material falls within the definition of
obscenity.

The original test for obscenity, as discussed earlier, was laid down in the R v Hicklin.
The vast majority of people agree that certain types of material should not be published
generally or at least not published in places to which children have access. However, the
very people rarely agree on precisely what obscene actually amounts to. What to one
person might be blatantly pornographic and objectionable will inevitably be merely a ' bit
risque' to another, and coffee table reading to yet another.

Regulation of sexual expression varies from society to society. As the statement of

Freedom of Expression for the Commonwealth notes, “the law with respect to obscenity
and pornography must arise from and respect the value of the society in which it
operates. States have a special responsibility for eliminating child pornography."

Regulation on Child pornography

A general international agreement exists on the need to prevent child pornography

although the age of sexual consent is not standardized worldwide. In Japan, soliciting
prostitution from a child under 18 years old is punishment under the law for publishing
acts related to child prostitution and child pornography, and for protecting children.

United States federal child pornographic statutes illegalizing the creation and
distribution of photographs or videos limit such sexual behavior between an adult and a
teen. In Europe the audio visual material which uses children in a sexual context is

24
Miller vs California
restricted under the Council of Europe definition.

The international criminal police organization's definition of child pornography goes

beyond visual representation to include a "child's sexual behavior or genitals". In the
jurisdiction of Canada, the criminal code proscribes obscenity. It is also an offence to
publish, import export or advertise anything that depicts a child performing a sexual act
or assuming a sexually suggestive pose while in a state of undress.

In reporting the code prohibits the media from including indecent matter or indecent
medical, surgical or physiological details that if published would be calculated to injure
public morals.

Example of Regulations in Kenya

Section 16 of the Sexual Offences Act ; any person who knowingly displays, shows,
exposes or exhibits obscene images, words or sounds by means of print, audiovisual or
any other media to a child with intention of encouraging or enabling a child to engage in
sexual acts is guilty of an offence of child pornography. Moreover, such offence attracts
a 6 years imprisonment or a fine of not less than five hundred thousand or both. Where
the offense is repeated, then a 7year imprisoned will accrue without the option of a fine.

The programming code for broadcasting services in Kenya gives guidelines on

obscenity and pornography.25 It provides that sex and related subjects must conform to
what is generally acceptable to the Kenyan society. Programmes must conform to the
requirements of watershed and rating by the Kenya Film Classification Board. Explicit
depiction of sexual arts in any program is prohibited during watershed period and can
only be allowed thereafter to the extent that is permitted by the KFCB.

TheKenya information and communication act Cap 411A; section 46 (1) obligates all
licensed broadcasters to observe standards of good taste and decency, to ensure that
advertisements, whether in terms of content, tone or treatment are not repugnant to
good taste. The licensed broadcasters should also ensure that derogatory remarks
based on sex among other factors are not broadcast
25
Programming Code for Broadcasting Services in Kenya - Publication of Kenya Communications
Authority
The Kenya information and communication (broadcasting) regulations, 2009 under part
IV on content, mandates the licensed broadcasters to ensure that no broadcasts by its
station presents sexual matters in an explicit and offensive manner or contains use of
offensive language including profanity and blasphemy. Section 20 protects the children
where the regulation requires the licensee to exercise care in order to avoid content of
offensive, explicit sexual or violent material and music with sexually explicit lyrics.

Cap 222 Films and Stage Plays Act: section 15(1)(a) gives the function of regulating
creations, broadcasting, possession, distribute and exhibition of films to the Board. The
board examined every film submitted under this Act for the purpose of classification.26It
then imposes age restriction on viewership and gives consumer advice, having due
regard to the protection of women and children against sexual exploitation or
degradation in cinematograph films and on the internet.

The board also license and issue certificate to distributors or exhibitors of films. Upon
completion of examination of films and posters the board can either approve if for
public exhibition, approve it for public exhibition but subject to excisions as it thinks
proper or refuse to approve it. Where excision is done the board may itself make the
excision and retain in its possession the excised parts. Any film or poster that prejudice
or offend decency shall not be approved.

Where one is convicted of an offence against the regulation of the Act the court may
order confiscation and destruction of the articles of revoke the license if any or
certificate of approval.

Legal regulation in the United States

The US Supreme Court formulated a test to judge whether content is obscene and thus
not protected speech.27 The test takes 3 parts:

 Whether the average person, applying contemporary community standards would

find the work, taken as a whole, appeals to prurient interests

26
Section 15(1)(a) Films and Stage Plays Act
27
Miller v California (1973)
  Whether the work depicts or describes in a patently offensive way, sexual
conduct specifically defined by applicable state law

 Whether the work, taken as a whole lacks serious literary, artistic, political, or
scientific value.

As a general rule print media has the most freedom to publish sexual material. This is
because it is easiest to restrict access to children by zoning, for example, adult
bookstores and businesses away from schools and other locations where children may
be present. In broadcasting, the FCC- Federal Communication Commission has
restricted indecent speech to late evening hours when children are not likely to be
present in the audience. Broadcast indecency which blurs the definition between
indecent and obscene is defined, under the broadcasting community standards, as
sexual or excretory activities or organs in material that ponders or titillates without
value. Generally cable systems are either free from indecency regulation or have more
freedom than broadcast. The internet is similar to print media when it comes to its right
to disseminate pornographic content. It is more broadly protected than broadcasting.

5.HATE SPEECH

The growth of social media use in Kenya has Increased the sharing of information
among people located in different parts of the country. Facebook and Twitter have been
actively used, however use of WhatsApp platform is also in the increase. Social media
Platforms have not only been used to share information but people use them for
different purposes. Politicians Have used social platforms to publicize their political
ideologies. On the other hand, tribal divide in the country has been expressed through
social media. The increase of hate speech is as a result of availability and access to
social media platforms where individuals can post information online and hide behind
Anonymity.
The media has the power to set and destroy agenda, influence and change. By enabling
informing and sometimes deceiving, the media is at the center stage of the happenings
in any country. While the media is self regulatory in various aspects, in the matter of
hate speech the law is specifically in the ambit of the state. Media is main channel
through which, and by which, the law on hate speech in the country is breached.
The liberal theory28 of the press argues that media should be left alone to air whatever

28
Liberal theory
they deem fit. This is the perspective taken by the West, they believe that individuals
have the right to free speech and that government should be able to limit it only for the
most compelling reasons. Communitarians on the other hand approach the issue from
the basis that Community’s well being is society’s most important goal and that an
individual’s right to free speech may be limited in the interests of harmony. They believe
that treating people with fairness and dignity justifies at least some free speech
restrictions and that, eliminating or reducing hate speech is a compelling goal to justify
government regulation. The social responsibility theory avers that the state should not
interfere in media operations as this curtails the freedom of the press, but that
nevertheless, there should be some measure of control. This control is to be
implemented by the media itself through self regulation, with minimum interference
from the state.
Many countries have laws that censor or limit certain types of expression, including
speech that incites violence and hatred. Some free speech advocates prefer an open
marketplace of ideas, where no expression is restricted. They consider that the best
response to harmful speech is through debate that lets different ideas freely challenge
it. Others argue that restrictions on hate speech are vital to the protection of minority
communities from the harm that such speech causes.
Media regulations on hate speech sometimes results to an infringement of freedom of
expression as illustrated in the following cases. In J.R.T. and the W.G. Party v. Canada29
The complainant was ordered by the court not to operate an anti-Semitic telephone
service and alleged that it was a violation of his right to freedom of expression.
Jersild v. Denmark 30, the Danish government described a case where a journalist had
been convicted of hate speech by a Danish court after he included racist statements
made by youths on television. The journalist concerned subsequently appealed to the
ECtHR which held that his conviction infringed on his right to freedom of expression as
the broadcast had been designed to expose and analyze the attitude of racist youths
and not to promote them.
CHIRAU ALI MWAKWERE V ROBERT M. MABERA & 4 OTHERS [2012] eKLR
This petition stemed from events of the 2010 by-elections campaign where the
petitioner, while at a public rally in Kombani area in Matuga Constituency of Kwale
County, allegedly uttered words amounting to an offence of ethnic or racial contempt
contrary to section 62(1) of the NCIAct
“Waswahili naWaarabu tuna uchungu sana sana, walitugandamiza, wakatufanya
watumwa, hatutakubali, hatutakubali, sisi, sais, kama walivyo fanya mababuzetu,
walisema wale Wadigo, Wakamba na Waduruma tukawanunua kama
makaa…Nawaonya watu wa bara walio na ukabila wataona cha mtemakuni. Ningetoa

29
Communication No. 104/1981, U.N. DOC.CCPR/C/OP/ 2 at 25 (1984)
30
(1995) 19 EHRR 1 and 2 others
amri na maneno yakawa mengine”
On 21stAugust 2010, the petitioner was requested to record a statement under inquiry
and caution by the 1strespondent acting on instructions from the other respondents.
After recording the statement, the petitioner accuses the respondents for agitating for
his arrest and prosecution. He views this act as an infringement of his fundamental
rights and freedoms. By his petition dated the 12th January, 2012, the petitioner asks
this court to declare sections 13, 14 and 62 of the NCI Act unconstitutional to the extent
that they purport to criminalize the freedom of a person to express themselves about
past injustices. It was held that the sections 13, 14 and 62 of the NCI Act were valid,
there was no reason for intervention in a legal process of investigating the petitioner.
The petitioner’s fundamental rights and freedoms protected under the Constitution have
not been infringed, the petition was dismissed .
Reporters do their work with a lot of fear because whenever they make any
inappropriate references to gender, ethnicity, religion or culture they may be convicted
of hate speech .They stress the importance of objectivity 31When reporting political or
community activity especially disputes and conflicts. Reporters are expected to observe
integrity 32Requirements by acting within the law, being aware and complying with rules,
laws and standards in their beats. This means that they have to use legal means and be
above board when gathering information. Article 512 advises reporters dealing with
legally sensitive material to bring such material to the notice of senior editors. The
handbook also has a comprehensive listing of potential legal dangers and areas
necessitating legal support. As a result of these restrictions reporters may be reluctant
in covering certain information hence curtailing their freedom of expression.
THE LEGAL BACKGROUND IN KENYA
Hate speech in Kenya is governed by a myriad of laws from the country’s Supreme Law
to Acts of Parliament, subsidiary legislation and rules as well as legal doctrines.
The constitution of Kenya 2010, the national cohesion and integration commission and
the penal code make provisions on hate speech.
Article 33(2) c of the constitution states that the right to freedom of expression does
not extend to hate speech.
Section 13 of the national cohesion and integration commission act forms the basis of
a more formidable explanation for hate speech law in Kenya. Section 13(1) defines hate
speech as the use of threatening, abusive or insulting words or behavior or display of
any written or published material which intends to stir up hatred against a group of
persons by reference to color, race , nationality or ethnic background.
The relationship between freedom of speech and the protection from hate speech is

31
Article 10
32
Article 17
anchored in article 33 of the constitution of Kenya, it permits the right to freedom of
expression. Freedom to seek, receive or impart information or ideas, freedom of artistic
creativity, academic freedom and freedom of scientific research. According to article 27,
everybody is equal before the law and has the right to equal protection and equal benefit
of the law. Due to this state or individual shall not discriminate directly or indirectly
against any person on any ground including hate speech.
Under Section 77(3)e of the penal code , any person who does any act with a subversive
intention or utters any words with a subversive intention is guilty of an offense and
liable to imprisonment for a term not exceeding 3 years .
CONCLUSION
While measures financing media to foster their professionalism and independence are
promising, their overall effectiveness is closely connected to the environment for the
media at large. Contributing to a more conducive environment for independent and
plural media hence requires a continuous effort at all levels, combining support for
media organisations and journalists within Kenya with sufficient political pressure and
reform incentives for the Kenyan government. Their is need to balance the freedom of
expression, freedom of the media with the laws governing media operations to allow
smooth operations in the media sector.