Drawing the Line: Online Freedom, Rights Abuses and the Constitutional Imperative

“The persistent controversy about the reach of the state’s power to restrict free thought and speech in a democracy suggests that freedom of expression has still not made an unassailable case for itself.” – Githu Muigai, Esq. (September 1993).

To speak or to otherwise express oneself is a natural, and indeed an essential human activity, part of what it means to be human. Expression is therefore a means of fulfillment of the human personality. On a larger scale, freedom of expression is essential to the functioning of a democratic state. For people to make political choices they must have access to information and to different view-points. In a democracy, the right to express grievances and to propagate or criticise policies enables people to contribute to peaceful progress and change their society.

Well, atleast in theory.

Enter the curious case of Robert Alai.

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Recent Electoral Law Amendments: The Mechanical Jurisprudence of Rogue MPs

The Statute Law Miscellaneous Amendment Bill 2012 has been controversially amended, in part, as follows:

Elections Act, 2011 (No. 24 of 2011)

Qualifications for nomination of candidates.
22. (1) A person may be nominated as a candidate for an election under this Act only if that person—
(a) is qualified to be elected to that office under the Constitution and this Act; and
(b) holds a post secondary school qualification recognised in Kenya.
(b) holds, at the minimum, a certificate for end of secondary school education recognized in Kenya.

22A.
(1) Notwithstanding any other provision of this Act and for the avoidance of doubt, a person who is nominated as a candidate for election as President or Deputy President is nevertheless eligible for nomination and may contest as a candidate for any other elective seat in the same elections.
(2) If a candidate for election as President or Deputy President is elected as such and is also elected for any other elective seat in the same elections, a vacancy shall thereupon be declared for that other elective seat and a by-election to fill such seat shall be held in accordance with this Act.

Participation in elections by public officers.

43.
(5) A public officer who intends to contest an election under this Act shall resign from public office at least seven months before the date of election.
(5) A public officer who intends to contest an election under this Act shall resign from public office at least five months before the date of election.


Airtime by state radio and television for election campaign.

108. All candidates and political parties participating in an election shall be allocated reasonable airtime on state radio and television broadcasting services during the campaign period.

108. All candidates and political parties participating in an election shall be allocated reasonable airtime on all broadcasting media during the campaign period.

Political Parties Act, 2011 (No. 11 of 2011)

Transitional provisions
S. 51
(1A) Until after the first general elections held after the commencement of this Act, nothing provided for in sub-sections (4), (5) or (7) of section 14 shall be construed as requiring a person to vacate his or her seat as a member of Parliament or of a local authority, or as disqualifying any person from eligibility to contest in an election under this Act.

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The Challenge of Developing Indigenous and Patriotic Jurisprudence in Kenya

The following excerpts are taken from the Speech given by Chief Justice Willy Mutunga, President of the Supreme Court and Head of the Judiciary during the Admission to the Roll of Advocates on 19, June 2012 at the Supreme Court of Kenya.

“Some have spoken of the new Constitution as representing a second independence. This is when our institutions, and the people, are to come into their own. When the legislature will truly act as the representatives of the people, and the supervisors of the executive. When the executive will put the interests of the nation first, above the interests of tribe, individual and class. And when the curse of impunity will be ended and the rule of law prevails.

This will only happen if we all, including the judiciary, play our part, for the forces of resistance are strong.

By the rule of law, I do not mean the sort of mechanical jurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court to reach an apparently technically sound decision that the election of a sitting President could not be challenged because the opponent had not achieved the pragmatically impossible task of serving the sitting President in person. It was mechanical jurisprudence that fuelled the decision of a High Court that the former section 84 of the old Constitution (on enforcement of Bill of Rights) was inoperative because the Chief Justice had not made rules on enforcement as he was obligated by the same Constitution to do.”

(…)

“It is perhaps remarkable that, although disappointment with the judiciary was at least as great among wananchi as frustration with politicians, it is also true that the Kenyan people chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

But what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. Patriotism requires putting love of country above love of self. For lawyers and judges, it does not mean putting country above justice. I conceive that it requires us to develop the law in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision.”

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Women Will Spearhead Kenya’s Constitutional Commitment to Equality

On this International Women’s Day 2012, allow me to start off by briefly discussing the dynamics of social change. Throughout history, it has always been the oppressed groups within any society that have been at the forefront of the struggle for equality. For instance, during the Civil Rights Movement, African American leaders were on the front lines of the struggle for social change because they knew first-hand what inequality and discrimination was all about. Within the human rights struggle in Kenya, the women’s movement has perhaps been a well organised and formidable force resulting in part to the promulgation of the Constitution in 2010. It is because of women’s own past experiences of prejudice and injustice that they continue to push for social change and reforms.

Equality is a difficult and deeply controversial ideal. At its most basic and abstract, equality is a moral idea that people who are similarly situated in relevant ways should be treated similarly. Therefore, in the context of the gender equality struggle, women and men must have full and equal enjoyment of all rights and freedoms which includes the right to equal opportunities in all areas of life. So, the struggle for ‘gender equality’ as we know is not only about women but rather about both the male and female genders. However the struggle for equality and equity between the two genders is led predominantly by women precisely because they have endured decades of prejudice and discrimination on the basis of their gender. Therefore women understand the importance of ‘equality’ both as a social ideal and more importantly as a legally binding requirement that is the hallmark of Kenya’s constitutional dawn.

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