The judgment of the Kenyan Court of Appeal in Bloggers Association (BAKE) of Kenya vs Attorney General, delivered on March 6, represents an important advance in Kenyan free speech jurisprudence. At issue was the constitutional validity of Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018. These sections criminalised the “intentional publication of false, misleading or fictitious data or misinformation with the intent that the data or information shall be considered or acted upon as authentic” and “publish[ing] information that is false in print, broadcast, data or over a computer system that is calculated or results in panic, chaos, or violence.” While the High Court of Kenya had upheld the constitutionality of these provisions, the Court of Appeal struck them down (see the analysis by Joshua Malidzo Nyawa here).
The case thus raised the issue of whether the State can criminalise bare falsehood, without the added requirement of a prohibited impact (say, for example, propaganda for war, or incitement, or public disorder). The Court of Appeal held that it could not, on the basis that “in a world without universal truths or falsities, the offences may be difficult to prove.” (para 141) It went on to note that:
… history teach[es] us that what we may hold to be false today may turn out to be true tomorrow. For instance, Galileo Galilei was tried and convicted by the Roman Inquisition for stating the truth (that the earth revolves around the sun) in an era where the correctness of his statement was deemed a falsity. These provisions risk criminalising satire, opinions and journalistic inaccuracies. (para 142)
It is important to carefully unpack these two observations, as they make two overlapping – yet distinct – claims. The first is the postmodernist-inflected claim is that the notions of “true” and “false” break down under sustained scrutiny, as this is a “world without absolutes.” While I have no stand on this as a philosophical matter, I do not think it is a constitutionally correct position. In certain contexts, the law does require determinations of “truth”: the most obvious example is defamation law. In other words, whatever philosophy has to say on the subject, the law does presume that “true” and “false” are not entirely subjective constructs.
The observation in paragraph 142, however, is both more modest and – in my view – more accurate. That is, whatever the ontological status of “true” and “false,” there are excellent reasons why we do not vest the power to determine truth and falsity in the State, backed up with coercive sanction. The example of Galileo demonstrates the risk of a constitutional order in which the State (or the Church’s) version of what is true becomes the truth, because all other versions are persecuted out of existence. Indeed, in his judgment in Kunal Kamra vs Union of India, while examining a very similar law, Patel J. noted:
… while some things may be absolutely true (that 2+2 = 4), the question before us is whether the State can arrogate to itself the power to determine what, outside the starkly obvious, may be true or false. History has no shortage of examples; the most immediate one may be Galileo. (para 165)
I would therefore read the Court of Appeal judgment as prohibiting the State from using its coercive powers in service of determining one “truth.”
A third point also follows from para 142, which is the risk to criminalising satire or opinions. Ostensibly, it could be argued that a provision dealing only with truth or falsity would not pose any risk to opinion. However, this is not true, as there is a whole range of expressive content where the question of whether it is a fact or an opinion is itself contested. The most striking example of this is the South African Constitutional Court judgment of DA vs ANC, where a bulk election text message stating that the-then President Jacob Zuma “stole” public money caused controversy. While Zuma had never been convicted of theft, the DA argued that the word “stole” was not to be understood as referring to the criminal offence of theft, but as referring to a broader accusation of misuse of public funds for personal gratification. On the narrow meaning of the word “stole”, the text message was clearly a false statement. On the broader meaning of the word “stole”, the text was – equally clearly – an expression of opinion. The difficulty of determining this is highlighted by the fact that the issue resulted in multiple split judgments by the South African High Court, the Supreme Court of Appeal, and the Constitutional Court. What this shows, therefore, is that the Kenyan Court of Appeal was entirely correct in noting that while a law may claim to criminalise only bare falsehoods, and therefore not touch “opinion”, it is impossible to limit the reach of the law to the former without impacting the latter. Consequently, the Court was right to note that the provisions were unconstitutionally “broad, wide, untargeted, akin to unguided missiles, and likely to net innocent citizens.” (para 141) (for similar arguments, see the present author’s written submissions in Kunal Kamra vs Union of India, Part I and Part II).
The BAKE case also raised issues of online privacy, which we may consider briefly. There was a range of provisions in the Act designed to prevent and prosecute cyber-crime, with a knock-on effect on privacy rights. The Court of Appeal upheld these provisions, on two bases: first, that for the most part, the coercive powers granted to the police were for the most part ring-fenced by the requirements of judicial sanction, and specific, non-general warrants; and secondly, that the provisions themselves encoded the proportionality standard. It is difficult to argue with this finding, as the law cannot go much further than this. The Court of Appeal was cognisant of the remaining potential of misuse, and accordingly observed that it was the task of the first-instant judiciary – that had been granted powers under the Act – to check abuse.
One can think of this as a form of delegated proportionality: that is, proportionality is to be deployed not only in constitutional challenges by constitutional courts, but by first-instance courts whenever State action affects individual rights. It is important to note that the Kenyan courts are no strangers to this idea: in 2023, Senior Principal Magistrate M.A. Opondo applied proportionality to the question of police remand. While no label has yet been given to this phenomenon, I think that “delegated proportionality” captures its essential aspects; and we shall see if, going forward, Kenyan magistrates apply it to the privacy-infringing provisions of the Act.
I would further argue, in fact, that the Court of Appeal’s observations provide a path forward should this not happen. If, over time, it is found that Magistrates are failing to apply proportionality in a majority of the cases before them, then it can potentially be argued that a “unconstitutional state of affairs” has come into existence, which engages the supervisory jurisdiction of the constitutional courts. Of course, it is to be hoped that this is never needed.
A brief, final note of disagreement: the Court of Appeal upheld the criminalisation of “grossly offensive” speech by equating it to “online harassment.” However, “offensive” and “harassing” are two very different concepts. While one can appreciate the Court’s attempt to “read down” the provision, the gap between the two remains glaringly large, and raises the spectre of the State actually doing the harassment in question, by going after bloggers or social media posters who are merely being “offensive.” This will be one to watch for the future.
Other than this small quibble, however, the Court of Appeal’s judgment is soundly reasoned, and exceptional for being almost entirely unexceptionable. If more judgments were written like this, us critics would soon have very little to write about!