THE RIGHT TO FREEDOM OF EXPRESSION AND ITS ROLE IN POLITICAL TRANSFORMATION IN KENYA by Eric Kibet Morusoi Submitted in fulfilment of the requirements for the degree Doctor Legum (LLD) In the Faculty of Law University of Pretoria October 2016 Supervisor: Professor Charles Manga Fombad © University of Pretoria Declaration of Originality I, the undersigned, hereby declare that this thesis, which I submit for the degree Doctor Legum (LLD) in the Faculty of Law at the University of Pretoria, is my own work and has not previously been submitted for a degree at another university. I have correctly cited and acknowledged all my sources. Signed: ________________________________________________ Eric Kibet Morusoi Date: ________________________________________________ Supervisor: ________________________________________________ Professor Charles Manga Fombad Date: ________________________________________________ ii © University of Pretoria Dedication To my mother Elizabeth Cherono Koromicha -and- My son Immanuel Bethel Morusoi who was born while this research project was midway iii © University of Pretoria Acknowledgements Many people and institutions made valuable contributions towards the success of this project, and I am eternally indebted to them. It is difficult to name all of them for reasons of space. I will name only but a few. I am very thankful to my supervisor Professor Charles Manga Fombad who was patient and indefatigable in his oversight, and provided valuable guidance. He brought critical view and sharp intellectualism to his role. This in turn broadened my perspectives and helped me to refine this thesis. I would also like to thank all the members of the panel that interrogated my research proposal during its defence in July 2014. Special thanks go to the chair of the panel Professor Frans Viljoen, and Professor Jonathan Klaaren for very useful insight and advice. I would also like to thank Professor Sylvia Kang’ara, the Dean of Riara Law School for her constant support and inspiration throughout this work. At the start of this project, she organised a faculty colloquium in which I received very useful comments that greatly improved my research. Professor Kang’ara and the Riara University administration reorganised my responsibilities in a way that enabled me to have more time for research. For this support, I am deeply grateful. I cannot forget to thank University of Pretoria and its sponsors for their generous financial support. The post-graduate bursary support enabled me to complete this project. I also thank the LLD administrators Klass Ntuli and Rina Deetlefs, their predecessor JeanneKay Goodale and the staff of post-graduate financial support desk especially Marieka Schoeman and Leanne van Zyl for their administrative assistance. Many thanks to the conveners of post-graduate Research Methodology Course at the University of Pretoria in May 2014. The course offered very valuable tips on researching for and writing a doctoral thesis. I would also like to thank Professor Peer Zumbansen and Dr Prabha Kotiswaran both of King’s College London for giving me the chance to attend the Transnational Law Summer Institute Programme in June 2016. The program enriched my research and writing skills and connected me with distinguished scholars and fellow doctoral researchers. iv © University of Pretoria I thank Lemuel Abishua and Nicole Treyson for their editorial and proof reading assistance. Many thanks go to my colleagues at Lexlink Consulting, especially Roseline Njogu and Ngina Mutava who allowed me to be away to focus on research and writing, and shouldered the burden of my absence. I also thank my colleagues at Riara Law School, namely Sylvia, Florence, Rosa, Damaris, Jackline, Caroline and Victor for their camaraderie, moral support and unfailing encouragement. I also thank Riara University library staff, especially Hillary Ochieng for constant assistance, Andrew Muya for ICT support, and Eric Lang’at for dedicated catering service during my writing retreats. Special thanks to my wife Truphosa for her constant encouragement, reading a few of my chapters and for enduring many weeks of my absence from home. Thanks also to my son Immanuel who made home exciting and rough in equal measure at a time when I wanted to be left alone to focus on writing. Special thanks go to my mother Elizabeth. Although she had no formal education, she intuitively appreciated its value and paid the price to ensure that I got the best. Thanks also to my father-in-law Rev. David Ashiko for his encouragement and frequent phone calls to check on my progress, and my spiritual mentors Pastor Ken Yapha, Pastor Robert Lang’at, Pastor Nancy Lang’at and Pastor Pamela Ogwel. Above all, I thank God Almighty for the gift of life and well-being, and the strength to endure the rigours of this project. v © University of Pretoria Acronyms and Abbreviations ACHPR African Charter on Human and Peoples’ Rights ACHR American Convention on Human Rights AG Attorney General AU African Union CORD Coalition for Reform and Democracy CAK Court of Appeal of Kenya CJ Chief Justice CPRs Civil and Political Rights DCJ Deputy Chief Justice DFRD District Focus for Rural Development DPP Director for Public Prosecutions EACC Ethics and Anti-corruption Commission ECHR European Convention on Human Rights ECtHR European Court of Human Rights eKLR Electronic Kenya Law Reports EU European Union GA General Assembly HCK High Court of Kenya HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Convention on Economic Social and Cultural Rights ICT Information and Communication Technology IPPG Inter-Party Parliamentary Group IT Information Technology KANU Kenya Africa National Union KADU Kenya Africa Democratic Union KBC Kenya Broadcasting Corporation vi © University of Pretoria KDF Kenya Defence Forces KFCB Kenya Film and Classification Board KICA Kenya Information and Communication Act KLR Kenya Law Reports KPU Kenya People’s Union LSK Law Society of Kenya NARC National Rainbow Coalition NCIA National Cohesion and Integration Act NCIC National Integration and Cohesion Commission OAU Organisation of African Unity SADC Southern African Development Community SCJ Supreme Court Judge SCK Supreme Court of Kenya SERs Social and Economic Rights SLAA Security Laws Amendment Act SONU Student Union of Nairobi University UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations US United States USD United States Dollars VOK Voice of Kenya WUS World University Service vii © University of Pretoria Abstract Enacted after a protracted review process characterised by many false starts, tensions and at times violence, the Constitution of Kenya 2010 envisions a radical break from a politically repressive past. It envisages extensive political transformation; a momentous shift in the political configuration of the polity in terms of its governance structures and the equilibrium of power among its institutions. It also entails a change in the normative arrangements, culture, attitudes and practices that surround politics and the exercise of public power. Crucially, as part of the transformation project, the Constitution has made a resolute commitment to fundamental rights and freedoms. Key among these is the right to freedom of expression. Freedom of expression enjoys protection in democratic constitutions around the world and in international law, albeit in different formulations. The right has repeatedly received affirmation in apex courts, including in Kenya, as the ‘bedrock of democratic governance,’ and similar praises. Except for jitters raised by the recent enactment of a plethora of expression-restricting laws and increased controversial prosecutions, there has been a general assumption that the protection of the right in Kenya is solid. This study aims, in part, at evaluating and deconstructing that assumption. In particular, the thesis answers the following research questions: (a) what is the nature and scope of the right to freedom of expression and its limitations in Kenya? (b) what are the transformative goals of Kenya’s 2010 Constitution? (c) what is the role of the right to freedom of expression in Kenya’s project of transformation?, and (d) do the limitations of freedom of expression under Kenyan law meet the standards of the 2010 Constitution? The thesis concludes that the transformation envisaged in the Constitution cannot be complete without fundamental changes in the law, practice and attitudes that surround freedom of expression. This is because, as the thesis shows, freedom of expression has the role of legitimating, facilitating, and defending the envisioned change. While the Constitution has created a framework with the potential to support transformation, freedom of expression restrictions contained in statutes, English common viii © University of Pretoria law and judicial precedents undercut the protection of the right. In other words, while some of these restrictions serve legitimate purposes, the constitutional validity of others is suspect. This situation, in turn, undermines the transformative aspirations of the 2010 Constitution. Keywords: freedom of expression, the right to freedom of expression, political transformation, 2010 Constitution, Kenya’s Constitution, human rights, political expression, limitation of rights, freedom of expression restrictions, article 33 ix © University of Pretoria Table of Contents Declaration of Originality .......................................................................................ii