A Legal Rant: The Freedom of Expression against the Government and its Delimitations in Kenya

Some matters do not require a learned, scholarly treatise to be analyzed or criticized. They are self-explanatory. Reading an article about them feels like watching a YouTube video on how to drink water or how to turn on a switch. Those are basic things that almost everyone is well aware of and do not need any sophisticated or philosophical essays or videos to make him or her understand. The irony of life, however, is that such videos get millions of views, which is the same reason that makes the discourse in this essay relevant today: freedom of expression and its limitations.

In a very basic sense, the freedom of expression is innate. Whether or not one has read Article 33 of the Constitution of Kenya 2010, Article 19 of the Universal Declaration of Human Rights (UDHR) 1948 or Article 19 of the International Covenant on Civil and Political Rights (ICCPR) 1966, it is always in the hearts of human beings to want to express themselves. This inborn need is satisfied through speech, writing, drawing, or even demonstrating (UDHR, Art 19). It reflects our individuality and autonomy to express ourselves, thoughts, ideas, beliefs, and emotions. It follows that freedom of expression is essential in personal development and it is the bedrock of any democratic society since it allows open communication and creativity, and ensures that all voices are represented.

Even in societies where freedom of expression as legal protection is scant or suppressed, people inherently find ways to communicate their thoughts, whether through subtle resistance, coded language, or artistic expression. As Václav Havel states in his book titled The Power of the Powerless (1978): "Living within the truth, as humanity's essential gesture, is at the core of all genuine resistance to the dehumanization and oppression of the system." Therefore, this freedom seems to be boundless, and timeless, reaching across written laws and political barriers. Yet even while the urge for such expression may come instinctively to people, in actuality, much depends upon broader legal and social contexts that shelter or suppress it.

The transformative Constitution of Kenya 2010 has unequivocally provided for the freedom of expression as follows:

(1) Every person has the right to freedom of expression, which includes--

(a) freedom to seek, receive or impart information or ideas;

(b) freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to--

(a) propaganda for war;

(b) incitement to violence;

(c) hate speech; or

(d) advocacy of hatred that—

(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or

(ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

The right is so broad that it allows citizens to express their own opinions even against the government and they should not be charged for that. As a matter of fact, the freedom of expression is one of the most important ingredients of a democratic society as was held in Edmonton Journal v Alberta [1989] 45 CRR 1, by the Supreme Court of Canada (Corey J), that:

[I]t is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.

A similar proposition was advanced in the Indian Supreme Court holding of Manika Ghandhi Vs Union of India [1978] 2 SCR 621, that:

"Democracy is based essentially on a free debate and open discussion for that is the only corrective of government of actions in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential."

Moreover, it was also held in the case of Rangrajam v Jigjiram that:

In a democratic society it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted. Everyone has a fundamental right to form his own opinion on any issue of general concern. He can form and inform by any legitimate means.

It is, hence, evident that a democratic state treats its supporters and its critics equally and promotes equality in its governing. The state ensures that everyone is protected in his freedom to express himself, regardless of his political persuasions, beliefs, or opinions, without persecution or intimidation. Fairness and the pursuit of equity are commitments inseparable from functional democracy: they help people believe in institutions, aid accountability, and facilitate healthy dialogue between government and its citizens.

True democracy recognizes dissent and criticism are not weaknesses but part of its strength. A democratic nation allows the coexistence of various viewpoints, promotes innovation, responds to social grievances, and refines its policies toward better people's service. It realizes that suppressing dissent only fosters resentment and instability while embracing it begets more informed decision-making and a united society.

More importantly, in an open and democratic state, public officers have to bear the criticism because it is part of the necessary price of accountability and good governance. The exercise of the right to freedom of expression, especially in holding the leaders accountable, is an expression of the sovereign power vested by the Constitution in the people. Criticism of citizens against public officers is not a personal vendetta but an engagement in the democratic process to ensure that there is transparency, fairness, and justice in governance.

Laws and law enforcement institutions should, therefore, aim at facilitating and protecting this right, rather than suppressing it. Laws that undermine freedom of expression not only subvert democratic precepts but also perpetuate an atmosphere of fear and silence in which corruption and abuses of power can flourish with impunity. In a democracy, public officers are servants of the people, and as such, they must remain open to public feedback, even when harsh or unpopular.

The Situation in Kenya

Since June 2024, Kenya has witnessed many vocal citizens, especially the youth, who have been on the frontline to criticize the government. In a very unique manner, the criticism has been enabled by protests, memes, posts on social media, reaching out to individual politicians, comedy and even in one-on-one contexts such as public gatherings. This unique dynamism in political expression underscores a vibrant democracy at work—citizens exercising their constitutional right to hold the government accountable

Unfortunately, the government has become very unpopular among the citizens and instead of addressing the root cause of the unpopularity, it has resolved to use unconventional means to silence the people. For example, the initially peaceful Gen Z demonstrations, emblematic of youthful energy and resilience, were turned violent by the very actions of the police to tear gas and fire live bullets at the demonstrators. Reports indicate that nothing was done to compensate the families that were affected.

Even more harrowing is the increase in enforced disappearances and abductions of people who have taken to digital platforms to express their dissatisfaction. From meme-sharing to criticism, many have been victims of enforced disappearances, with several credible allegations pointing to police involvement. This grim reality harks back to the dark days described by Wahome Mutahi in Three Days on the Cross, where fear and oppression suffocate public discourse.

It is particularly alarming that the government employs methods that blatantly contravene the law. For instance, while deepfake technologies and false publications are prohibited under Kenya's Computer Misuse and Cyber Crimes Act, including sections on False Publications (Section 22), Cyber Harassment (Section 27), and Willful Misdirection of Electronic Messages (Section 32), the Constitution and the law provide a watertight framework that enables the prosecution of persons who violate the law and at no point is abduction one of them. Nothing more should be said other than calling out the government for employing such cruel and archaic mechanisms to deal with criticism.

This crackdown becomes even more insidious, as it is unselective. Targets of this persecution even include artists using their art as a form of expression, like satirist Kibet Bull. These people use art to express critiques against governance without promoting any violence or false information, yet they are being treated as foes of the state. Tyranny is going overboard when it targets artists, comedians, and ordinary citizens. The government has certainly abandoned democracy in that instance.

A government that silences critics by fear and violence loses legitimacy. Criticism – satire, art, protest – is not a threat to governance; it is a tool for betterment. It is high time the Kenyan government recognized dissent is not disloyalty, and that engagement with its critics, not their silencing, is the only road to the reinstatement of trust and stability.

Yours,
Mungai K