Written by Ryan Muthomi Kinyua, 3rd Year LL.B Student at University of Embu.
Freedom of expression is an internationally recognized human right, which has been described as foundation stone in a democratic society. It is enshrined in article 19 of the Universal Declaration of Human Rights (UDHR) which states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This is echoed by the Kenya’s Constitution which states that; “Every person has the right to freedom of expression, which includes-freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.” Irrefutably, the right to freedom of expression underpins other human rights such as the freedom of thought, conscience and religion, allowing them to flourish. That freedom of expression in a democratic country plays a huge role in politics, is indisputable. It is upon this conceptualization that this article discusses the role of freedom of expression in Kenyan politics.
Why freedom of expression in political context? A Justification.
There are several justifications for the freedom of expression. To start with, it has been argued that this freedom enables the discovery of truth. It is through expression that people give information which is important for the good of the public. Equally, as a cornerstone for democracy, the right to freedom of expression promotes public participation. Limiting the freedom of participation is tantamount to limiting the fundamental constitutional right to public participation. People have the right to express their views on political matters without unreasonable or unjustifiable limitations. While stressing on the importance of the right to freedom to expression, the court in Robert Alai v The Hon Attorney General & another  eKLR noted that the people of Kenya have a democratic right to discuss affairs of their government and leadership because of their right to freedom of expression guaranteed by Article 33 of the constitution. They cannot be freely expressing themselves if they do not criticize or comment about their leaders and public officers. The court also reiterated the decision in Manika Ghandhi Vs Union of India where the supreme court of India had stated that “Democracy is based essentially on a free debate and open discussion for that is the only corrective of government of actions in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.” In view of the foregoing, it’s clear that the right to freedom of expression is very crucial in politics, in any given democratic society. There can be no self-rule without self-expression. It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democratic society cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions
Limitations of the freedom of expression.
Whereas the right to freedom of expression is a fundamental right, it is not an absolute one and therefore cannot be used in violating of other people’s rights. But being a constitutional right, it can only be limited constitutionally. Article 24 of the constitution of Kenya 2010 states that a right or fundamental freedom in the bill of rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account relevant factors in a case-by-case basis. This was affirmed in Robert Alai Case (supra) where the learned judge reiterated that the right to freedom of expression being a constitutional right, can only be limited in accordance with the constitution itself, and where it is limited by statute, that statute or statutory provision must meet the constitutional test of reasonableness and justifiability.
The rationale for limitations of rights and freedoms is anchored in the need to ensure that the enjoyment of the right and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others. Precisely, article 33 (2) of the constitution explicitly states that the right to freedom of expression does not extent to propaganda for war, incitement for violence, hate speech, or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination specified or contemplated in article 27 (4). Therefore, even as citizens enjoy the freedom of expression, they must be cautious not contravene the provisions of article 33 (2), as well as other laws prohibiting defamation of other people.
Freedom of expression is central in politics of any democratic country, and Kenya is not an exception. It is through this right that Kenyans get to have their say and opinions considered in governance matters. This right forms the root of public participation which is a governance principle as enshrined under article 10 of the constitution. However, the right to freedom of expression is not an absolute one and no person should violate the rights of other people claiming to enjoy the freedom.
The writer is a 3rd Year Law student (LL.B) at University of Embu. You can contact him through [email protected]