Judge rules law on obscene posts is unconstitutional

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Judge rules law on obscene posts is unconstitutional

Blogger Cyprian Nyakundi. FILE PHOTO | NMG 

A judge has declared a section of the Kenya Information Communication Act, which criminalises publication of obscene information online, unconstitutional.

Justice Wilfrida Okwany on Wednesday ruled that Section 84 (D) of the Act is vague and broad, making it difficult for accused persons to defend themselves.

The petition was filed last year by blogger Cyprian Nyakundi, who faces several charges for allegedly posting obscene information about a number of personalities, including Kirinyaga Governor Anne Waiguru.

The blogger was charged in April 2018 before a Kiambu court. He is facing similar charges before a Nairobi court after posting remarks on his Twitter account about Interior Secretary Fred Matiang’i.

Mr Nyakundi challenged the charges and Justice Okwany agreed with him that Section 84 (D) of the Act does not explain who and how to determine who has been influenced by the posts. She further said the section was against Article 33 on freedom of expression and Article 25 (C) on the right to fair trial. The judge said a law that creates an offence should not be vague as it should enable an accused person to defend himself or herself.

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 the blogger’s rights.

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