Lady Justice Mumbi Ngugi of the High Court will on Friday deliver a judgment on the constitutionality of Section 29 of the Kenya Information and Communications Act, a law that creates the offense of “misuse of a licensed telecommunication device”.
The law makes it an offense to use any licensed telecommunication system such as cell phone or computer to send a message or other matter that is grossly offensive or of an indecent, obscene or menacing character.
This includes sending a message that one knows is false, for the purpose of causing annoyance, inconvenience or needless anxiety to another person.
The law also imposes a penalty of a fine not exceeding Sh50,000, or imprisonment for a term not exceeding three months, or to both.
In 2015, seven people were arrested and charged under this provision.
Curiously, from January to March 2016 alone, ARTICLE19 Eastern Africa has recorded 15 cases of Kenyans, including journalists arrested and are being charged under this law.
However, very few of these cases have led to actual prosecution. Usually, a suspect is arrested, detained and unceremoniously released.
It is increasingly clear that the police and those pulling their strings use the law mainly for intimidation purposes.
The law thus causes chilling effect on online expression, in that, any person who wants to communicate on issues touching on leaders must first ponder whether what they are about to share would lead to their arrest and detention.
ARTICLE19 Eastern Africa - an international NGO that defends and promotes freedom of expression and right to information.
Geoffrey Andare, the main petitioner in this case, filed a constitutional petition in the High Court challenging the constitutionality of Section 29 of KICA Act in 2015.
Mr Andare was arrested in April 2015 for posting a message on Facebook that reprimanded an agency official for allegedly sexually exploiting young girls in exchange for scholarships.