BY Olukoye Michael
Blogger Xtian Dela, runs on Instagram Live a show dubbed #clubcovid, hosted between 12:00 am and 4:00 am, during which time, upon invitation by the host, various women perform adult dances. They’re rated by other members of the public who can view the livestream and who determine how much of a token each should get from funds contributed to by viewers of the livestream.
Dela was in April served a demand letter to cease the livestream on grounds that can be summed up as being based on obscenity and indecency laws as set out under Sections 181 of the Penal code and 37 of the Computer Misuse and Cybercrimes Act (CMCA). The propriety of issuing a cease and desist demand letter over criminal acts aside, this article seeks to examine whether the aforementioned sections impose unconstitutional limitations on freedom of speech and the media. It is important to mention at the first instance that this has been unsuccessfully litigated in ‘Bloggers Association of Kenya (BAKE) v Attorney General & 3 others, Article 19 East Africa & another (Interested Parties)  eKLR’, hereafter ‘BAKE v AG (2019)’.
Section 181(1) of the Penal Code provides that “any person who (e) publicly exhibits any indecent show or performance or any show or performance tending to corrupt morals, is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of seven thousand shillings” [emphasis supplied].
Section 37 of the CMCA proscribes the same conduct described as ‘wrongful distribution of obscene or intimate images’. It provides that “a person who transfers, publishes, disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through 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”.
Notably, neither legislation attempts a definition of the terms ‘obscene’ or ‘intimate’. This issue, among others, shall be the basis of challenging constitutionality of the sections. In ‘BAKE v AG’ (2019), the court that the key difference between the two sections is “…the use of telecommunication network or other means of transferring data to a computer.” Otherwise, both simply proscribe broadcasting that is indecent, obscene or corrupts morals.
On the other hand, Article 33 grants the freedom of expression. Article 34 grants every person the freedom to engage in broadcasting, the production or circulation of any publication or the dissemination of information by any medium – the state being prohibited from exercising control over or interfere with any person. This freedom is also subject to the limitations under article 33(2).
BAKE v AG (2019)
In this case, refusing to find Sections 181 and 37 unconstitutional, the court justified its position as follows: One, that the petitioners ‘didn’t demonstrate the manner in which the section limits the freedom of expression other than contending that the choice or use of the words “obscene” and “intimate” are vague’. The court stated that ‘the words are used descriptively in reference to a state of affair and are clear and not vague’. It is noteworthy that the court did not demonstrate the state of affairs which, presumably lending context, would render the words “obscene” and “indecent” clear.
Two, the court in rejecting reliance on the case of ‘Miller vs California’ [413 U.S.15 (1973) the Supreme Court of the United States] stated that ‘obscenity case law differs from jurisdiction to jurisdiction and further on a case to case basis’. [para. 85] As such, it refused to apply principles laid down therein on the basic guidelines for courts determining obscenity cases. Interestingly, the court did not make an attempt to show why those guidelines are inappropriate for the purposes of comparative jurisprudence. In fact, the court did not in the very least demonstrate why the actual guidelines would be incompatible with Kenyan law.
Three, the court stated that ‘the petitioner ha(d) failed to set out, with enough precision, the manner in which Section 37 of the Act limits the freedom of expression’. [para. 86] Four, the court noted the failure of the petitioners to recognise the legitimate aim achieved of ‘controlling false publication, or child pornography’. [para.86] The court did not demonstrate how the impugned laws meet this objective other than the cursory mention of ‘the duty of the government under the social contract to protect its citizens and facilitate the highest attainable self-fulfilment’. The court did not also address the peculiar description of Section 24 of the CMCA as “child pornography” and therefore how Section 37 of the CMCA serves the legitimate aim of preventing child pornography in light of the more specifically crafted provision.
Based on the foregoing reasons, the court found the impugned provisions constitutional.
Limitations have to be in law
Article 24 of the Constitution provides for Limitation of rights and fundamental freedoms. Specifically, it provides for the manner of limitation of rights based on which sections 181 and 37 limitations are hereafter assessed for legality.
This requirement in Section 24(1) is deceptively simple, easily drawing one into the trap of presuming that it merely requires the instrument imposing the limitation to be law. However, the fundamental element herein is that such law is only law where, especially for criminal law, it is crafted with sufficient precision to allow an individual to regulate his conduct. Certain acts attract certain consequences. Simply, where words of statute are vague, they make provisions of law amenable to subjective interpretation therefore arbitrariness in application of the law.
This was in fact noted by the High court in ‘Geoffrey Andare v Attorney General & 2 others  eKLR’. Therein, drawing inspiration from ‘Sunday Times vs United Kingdom’ [Application No 65 38/74 para 49, European Court of Human Rights], the Court found the words ‘indecent’ and ‘obscene’ as used in Section 29 of the Kenya Information and Communication Act to be vague and as such, imposing unconstitutional limitations on the freedom of expression.
This position has been taken in multiple jurisdictions notably the United States in ‘ACLU v. Reno’, (1996); Canada in ‘Re Ontario Film & Video Appreciation Society v. Board of Censors’, (1983); South Africa in ‘Case & Anor, v. Minister of Safety and Security & Ors’, (1996); Malawi in ‘Gwanda v S’ (2017); Botswana in ‘Good V The Attorney General’ (2005); India in ‘Shreya Singhal v. Union of India’ (2013) and Uganda in ‘Charles Onyango Obbo v AG’.
This position, generally termed as the “void for vagueness” doctrine, inherently renders any limitation on a right that is vague, void.
This article takes note of Lon Fuller’s story of King Rex, [Morality of law, 1964] more specifically, one of eight ways to fail to make law, which is obscurity. To have a law whose material provisions cannot be understood is not to make law as rules have to be understood in the same way by those it applies to and those enforcing it. It is evident Sections 181 and 37 cannot be properly deemed to be law for reasons of vagueness of material terms, and the likelihood of differing interpretations renders them inconsistent with Article 24(1).
In the case of Dela, this vagueness is immediately apparent when one considers the demand letter and the response by counsel for Dela. On one hand, the performances broadcasted have been described as ‘moral corruption and decadence’, with Dela’s counsel simply describing them as dance competitions no different to those broadcast on TV. The take home point is that Sections 181 and 37, do little to actually determine whether the performances are proscribed or not, complicating enforcement.
Limitations must serve a purpose
This requirement involves an inquiry into whether there exists a legitimate objective that is achieved by limitation of a right. Specifically relating to freedom of expression, the analysis herein has to consider, among other things, whether a limitation seeks to prevent harmful expression or if it seeks to prevent offensive expression. The reason is that it is an accepted position that freedom of expression protects ‘offensive’ speech but not harmful speech.
To see this, one need only look at Article 33(2) on exceptions to the freedom of expression. It is apparent that the exempted/ unprotected classes of speech have tangible harm resulting. For example, propaganda for war would lead to war which is a tangible harm, and incitement to violence would lead to violence which is similarly a tangible harm. There has to be a nexus between the limitation and the prevention of a specific harm.
This position has also been taken in ‘Handyside v United Kingdom’ (ECHR, 1976) where the court pronouncing itself on propriety of a children’s publication that contained a 26-page section concerning “sex”, stated, ‘freedom of expression is applicable “to ‘information’ or ‘ideas’ that … offend, shock or disturb the State or any other sector of the population”. The Canadian Supreme Court in ‘R. v. Butler’ (1992) stated that ‘the State could not restrict expression simply because it was distasteful or did not accord with dominant conceptions of what was appropriate.’
Its noteworthy that Canada, like Kenya, had its legal system based on English common law and the court in the aforementioned case noted that English ‘obscenity and indecency’ laws were based on the view that ‘there were particular accepted conceptions of morality thus any deviation from such morality was considered to be inherently undesirable, independently of any harm to society’. The court found this position no longer defensible absent of actual harm. Essentially, it has been described as a bar on state paternalism in absence of actual harm [Article 19, Obscenity Laws and Freedom of Expression: A Southern African Perspective].
In the case of Sections 181 and 37, there is no apparent and specific harm sought to be prevented. This is partly due to vagueness in the description of material elements – “obscene” and “indecent”; which had they been specifically defined would disclose the harm being prevented therefore justifying the limitation. In ‘BAKE vs AG’, the court’s finding of ‘justification for limitations of Article 33 and 34 to be prevention of child pornography fails to meet this test as Section 24 of the CMCA addresses the same in greater detail. Further, claiming that the measure protects citizens without disclosing what harm society is being protected from fails this test as the ECHR has stated that there has to be a “pressing social need” for such measures. This leads to the conclusion that Sections 181 and 37 are unjustified in terms of Article 24(1(b)) for failing to demonstrate a pressing social need to address a specific harm.
Applying this to the Dela situation, presuming that the performances are unlawful in terms of Sections 181 and 37, what is the harm addressed? If it is the dance style complained of, i.e. “twerking”, then a large percentage of female nightclub revellers would be eligible for arrest for indecent and obscene performances, not to mention the many dancers who perform in roadshows. If it is the dancing and giving of money, then the many dance crews that engage in dancing competitions for a monetary prize would be engaging in illegal acts not to mention the TV networks broadcasting such entertainment.
Limitations must be least restrictive in achieving a legitimate objective
At the first instance, the effect of any restriction must, so far as is possible, be limited to the harmful expression which it is designed to restrict. Conversely, if there is risk of legitimate speech being affected by a measure, such measure is more restrictive than necessary. [Article 19, supra]
This position has been taken in other jurisdictions, case in point: South Africa in ‘State v. Makwanyane & Anor’, (1995); Tanzania in ‘Pumbun v. Attorney General’ (1993) and; Zimbabwe in ‘Nyambirai v. National Social Security Authority & Anor’, (1995). Regional courts have expressed the same, notably the ECHR in ‘Soering v. UK’ (1989), and the Inter-American court in Advisory Opinion No. 5 of 13 November 1985. This is termed as a ‘necessity test’.
As analysed, in the Dela case, it is apparent that acts that are entirely legal i.e. broadcasting dancing competitions which have a monetary prize could well be prosecuted and convictions obtained on the basis of the ‘obscenity’ and ‘indecency’ laws. This risk of legitimate speech (the broadcast) being affected by a measure leads to the conclusion that Sections 181 and 37, are inconsistent with Article 24(1(e)) for not being only as restrictive as is necessary to prevent a harm.
Secondly, this requirement is also violated where it can be shown that there exists alternatives that achieve the same aim. For instance, the harm pleaded in the case, i.e. corruption of morals of children, can well be subjected to ‘parental control and time, manner and place restrictions’. These are recognised, lesser restrictive means for limiting harm when it comes to ‘obscenity’ and ‘indecency’, as compared to blanket bans.
Consider the recent directive by Kenya Film and Classification Board (KFCB) that public transport desist from playing provocative music. This directive (presumably) targets a genre of music that has grown in popularity in Kenya, Gengetone, which almost always feature scantily dressed girls twerking to very raunchy songs. The KFCB could well have imposed a blanket ban on the entire genre but given the objective sought was to protect sections of the diverse clientele of public transport, it stopped at simply banning the music from in public transport instead encouraging that it remains in clubs. This is an example of a place restriction.
In similar fashion, restriction on broadcast of content likely to be deemed ‘obscene’ or ‘indecent’ could be limited to times that protected groups such as children are not reasonably expected to be awake. Such time restriction could for instance require content likely to be deemed ‘obscene’ or ‘indecent’ be broadcast only between the hours of 10:00 pm and 5:00 am.
One, vagueness offends the very basis of limiting rights which is that limitations have to be set out in law. Vague law is not law, especially for criminal offences as it doesn’t disclose with precision conduct that is outlawed. This not only impedes the ability of a person to regulate their conduct but also gives room for subjective interpretation and therefore arbitrary application by courts adjudicating criminal cases based on such law. Sections 181 and 37 being vague, impose unconstitutional limitation on the freedom of expression and the media.
Two, limitations of rights must serve a legitimate aim. Such is assessed by looking at whether there exists a ‘pressing social need’ to address a specific harm. Absent of this, there can be no justification for sustaining a limitation on a right. Therefore, Sections 181 and 37, which cannot be demonstrated to be tackling a specific harm for which there is a pressing social need for regulation, amount to imposition of an unconstitutional limitation on the freedom of expression and the media.
Three, limitations of rights must be least restrictive means of addressing a specific harm. Hereunder, the two obligations are to prevent the inadvertent limitation of legitimate speech through overly-broad provisions, and adoption of measures that least interfere with the freedom of expression. Further, especially when the object sought is to protect children, ‘parental control and time, manner and place restrictions’ are less restrictive alternatives to the outright ban on ‘indecent’ or ‘obscene’ broadcast.
Contrary to the position taken by the court in ‘BAKE v AG’, Sections 181 of the Penal Code and 37 of the Computer Misuse and Cybercrimes Act are unconstitutional limitations on Articles 33 and 34.