The Communications Authority (CA) of Kenya has vowed to challenge a ruling by the High Court quashing a section of the Kenya Information and Communication Amendment (Kica) Act.
CA director Francis Wangusi Tuesday said that an appeal against Justice Mumbi Ngugi will be filed, insisting that she misinterpreted the Constitution in deciding the fate of the disputed law.
Justice Ngugi yesterday held that the law, better known as the misuse of communication gadget law, does not meet the criteria set out in Article 24 of the Constitution which relates to the limitation of rights and freedoms hence cannot be allowed to exist.
The law allows the police to arrest anyone deemed to have used a licenced communications device to send an offensive message, be it a phone or computer.
Mr Wangusi added that there is nothing unconstitutional with section 29 of the Kica, and her interpretation of the law did not capture section 33 of the Constitution which caps the limits of freedom of expression. “I have not seen the ruling but definitely we are going to challenge it... There is nothing unconstitutional in that Act since it conforms to section 33 of the Kenyan Constitution,” Mr Wangusi said.
“While freedom of expression is guaranteed in our Constitution, the same Constitution states that one cannot use his freedom of expression to undermine the freedom of others,’’ he said.
Justice Ngugi Tuesday declared section 29 of the Kica Act unconstitutional following a petition filed by web developer Geoffrey Andare in May last year. Mr Andare filed the case after he was charged under it.
“Section 29 does not meet the criteria set out in Article 24 of the Constitution. If Section 29 was intended to protect the reputation of others then there is a provision for that in the law of libel,’’ Justice Ngugi ruled.
Section 29 of the Kica Act cannot be allowed to stand,”
The judge held that libel laws have provisions that allow any person aggrieved by an offensive message to seek reprieve before court.
ection 29 of the Kica Act has been used by police to prosecute several bloggers, journalists and even members of the public. The charges against them now stand to be dropped following Justice Ngugi’s ruling.
Section 29 stated that a person who by means of a licenced telecommunications system (a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person commits an offence and shall be liable on conviction to a fine not exceeding Sh50,000 or to imprisonment for a term not exceeding three months or to both.