The International Press Institute (IPI) today welcomed a Kenya court’s decision declaring the country’s criminal libel law unconstitutional.

High Court Judge John Mativo ruled yesterday that Penal Code Sec. 194’s criminal penalties, including up to two years behind bars, ran counter to the Constitution’s guarantee of free expression, especially given Kenyans’ ability to seek redress from civil courts if they felt defamed.

The provision prohibits the unlawful publication of any intentionally defamatory content “by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds”.

Mativo said that the possibility of two years’ imprisonment was “clearly excessive and disproportionate for the purpose of suppressing objectionable statements”. He also wrote that criminal defamation “cannot be reasonably justifiable in a democratic society as it offends the freedom of expression” and he said Sec. 194 was likely to stifle citizens’ access to information, including information on matters of public interest.

“It is inconceivable that citizens, the media and civil societies could perform investigative and informative functions without defaming one person or another,” Mativo opined. “The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain.”

IPI Director of Press Freedom Programmes Scott Griffen welcomed the ruling.

“The High Court’s decision is consistent with growing international consensus that defamation claims should be handled exclusively in civil court given the potential for criminal sanctions to exert a chilling effect on legitimate journalistic work,” he said. “In Kenya and elsewhere, criminal defamation laws have proven a convenient tool for powerful individuals to suppress criticism, and it is incumbent upon courts and lawmakers to push back. We therefore welcome this important decision and encourage other states in Africa to now follow Kenya’s example.”

The challenge to the law was brought by two individuals who faced criminal libel charges over comments they posted on Facebook about a lawyer.