The decision of Director of Public Prosecutions Keriako Tobiko came as a relief to the public, journalists, and media houses who have faced criminal prosecution as punishment for publishing statements alleged to be defamatory and injurious to the reputation of others.PHOTO:COURTESY
All criminal libel cases have been withdrawn following the High Court’s declaration that the law was unconstitutional.
The decision of Director of Public Prosecutions Keriako Tobiko came as a relief to the public, journalists, and media houses who have faced criminal prosecution as punishment for publishing statements alleged to be defamatory and injurious to the reputation of others.
“I direct that all criminal cases that are pending before court where the accused person was charged under Section 194 of the Penal Code for the offence of criminal libel be withdrawn. Further, no charges should be preferred against any person under the invalidated law,” said Tobiko.
The DPP notified Director of Criminal Investigations Ndegwa Muhoro and advised him not to arrest any person accused of criminal libel.
He added that he had appointed a team of senior prosecutors in his office to review the judgment and find out whether they can appeal against it.
High Court judge John Mativo on February 6 declared Section 194 of the Penal Code, which created criminal defamation that allowed the DPP to charge any person accused of defamation as unconstitutional, null, and void.
The section provided that any person who unlawfully publishes any defamatory matter against another person is guilty of libel and is liable to imprisonment for two years.
According to Justice Mativo, criminal defamation was a way to stifle and silence free flow of information in the public domain and would have resulted in the citizenry remaining uninformed on matters of public interest as well as unchecked continuation of various malpractices.
He also ordered an end to the continued prosecution of those charged with criminal libel, saying the harmful and undesirable consequences of criminalising defamation and the chilling possibilities of arrest, detention, and imprisonment were excessive and unjustifiable.
“Criminal defamation has a stifling effect, of its very existence, on the right to speak and the right to know. Freedom of expression is secured by the Constitution and can only be limited by the same Constitution. A drastic punishment cannot, therefore, be justified in our society,” the judge ruled.
He further ruled that the law provides a provision for remedy in defamation cases where a person is entitled to file a civil suit to seek compensation and gagging orders.