The right to freedom of expression and its role in political transformation in Kenya

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 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.