COURT DECLARES ARTICLE 194 OF PENAL CODE THAT CRIMINALIZES DEFAMATION UNCONSTITUTIONAL.

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High Court Judge, John Mativo has declared section 194 of the penal code as set out in the constitution as null and void on Monday February 6,2017.

BY SAM ALFAN.

Free to last, no one will arrest you for defaming anyone, court has ruled.

The court says that the law criminalizing defamation is null and void.

Judge John Mativo of the constitutional court declared section 194 of the penal code as set out in the constitution null and void.

The court ruled that criminalizing criminal defamation is unjustifiable on grounds that it infringes on freedom of speech.

The judge noted that anyone who is defamed has remedy under civil law to seek compensation and that criminalising defamation was therefore unacceptable in a democratic society.

“Any continued enforcement under this section will be unconstitutional, “court ruled.

The court further ruled that the punishment for the said criminal offence is excessive and not justifiable.

According to Section 194 of the penal code  any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel

The petition arose from a case in which Jacqueline Okuta and Jackson Njeru were sued by city lawyer for defamation.

The lawyer sought refuge from this section after Justice Mumbi Ngugi declared section 29 of the Kenya Information and Communications Act (KICA) unconstitutional last year. He had sued them using section 29, accusing them of misusing telecommunications device and causing anxiety to him for publishing posts on Facebook comments that he felt disparaged his character.

“Criminal defamation laws constitute a serious interference with freedom of speech and adhere to provision of freedom of expression,  articulated in the African Charter Declaration and other regional and International instruments” quoted the judge.

The petitioners challenged the constitutionality of the section, arguing that that the section sets limitations to freedom of expression not provided for in the Constitution

According to the judge, there is already an appropriate and satisfactory alternative remedy for defamation.

The ruling is a big win for media houses and journalists in Kenya.

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