Why everyone in the EAC must celebrate the end of criminal libel in Kenya

In November 2016, CID officers at Kibuli in Kampala summoned Mabonga Darlington Kitts, a Ugandan journalist, for questioning on a possible charge of criminal defamation.

Mr Mabonga had written that Inawale Job Olusegun, a pastor, had fathered a child with a woman other than his wife. That woman, Nadunga Robinah, had sued Pastor Inawale for neglecting Inawale Olusegun Job Junior, the child.

One, the law must be made for a legitimate purpose. In this case, it could be said that criminal libel protects private reputations and that is arguably a legitimate purpose.
Two, the means that the law uses to achieve its purpose must both be rationally related, one to the other. In this case, the means chosen by criminal libel is conviction followed by a jail term. It could be argued, as in the first point, that there is a rational connection between means, jail term, and the ends, protecting private reputation.
Three, the means chosen must be necessary; necessary in the sense that all other alternatives would be more harmful. In this case, civil damages are an alternative to a jail term. From a rights perspective, then, it is clear that an awarding does not invade constitutional freedoms as much as a two-year jail term. Since an alternative to a criminal libel prosecution exists in Jacqueline Okuta, the case would fail the test.
Finally, the restrictive law must strike a proper balance between the public interest and private rights. The public interest here is the need to protect the democratic process from being stifled by fear of punishment. The private interest is the need to give individuals remedies when their reputations are hurt. But since the law already awards damages to the defamed, additional punishment through criminal libel harms the public interest in free thought and speech.

Why everyone in the EAC must celebrate the end of criminal libel in Kenya

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