What is the limit of Article 24?

Kenya's Constitution recognises the people's aspiration for a government that values democracy. It provides for the democratic election of representatives of the people, and states that Kenya shall be a multiparty democratic state. The mainstays of Kenya's democratic status include the sovereignty of the people, the supremacy of the Constitution, the rule of law, and the Bill of Rights. Among the rights and fundamental freedoms in the Constitution are freedom of expression, freedom of the media and the right to freely assemble, demonstrate, picket and petition the government.

Article 24, however, provides for the limitation of a right or fundamental freedom. The limitation shall only be according to law and, even then, only to the extent that the limitation is reasonable and justifiable in an open an democratic society [and] based on human dignity, equality and freedom. In the wake of the enactment of the security Laws (Amendment) Act, 2014, it is alleged that the successful prosecution of a university student for "undermining the authority of a public official", the detention and interrogation of a blogger for the "misuse of a registered telecommunication device" and the proposed prosecution of a member of Parliament for "hate speech" are all harbingers of the "rolling back of the democratic gains made by Kenya in the past two decades."

This allegation is founded on the argument that these Kenyans have used social media in ways that the government has found discomfitting, and rather than the government taking credible steps to address the exposes made by these Kenyans, it has chosen to pursue their prosecution because of the fear that these Kenyans will either undermine the authority of the government or will lead to the fomenting of unrest abroad in the land.

The allegation may very well be true. In Kenya change has always come after the intransigence of the government was been worn down by popular will. The repeal of section 2A of the former Constitution came after the popular insurrection by the Forum for the Restoration of Democracy, FORD, galvanised the popular imagination of a majority of Kenyans. The promulgation of a new Constitution in 2010 was after the concerted efforts of civil society and the political opposition against the wishes of the ruling coalition. Therefore, the proper implementation of the rights and fundamental freedoms of Kenyans in Chapter Four of the Constitution will not be without the sometimes active opposition of the government or some of its key officials. The prosecution or criminal investigation of bloggers for what they say online is a sign that a paucity of ideas pervades certain sections of the government and only the concerted pressure of the people will force the government to call off the dogs.

The extent of the application of Article 24 to the Bill of Rights must be tested in the High Court. It will require that the political opposition and the civil society join hands to challenge every attempt by the national Executive to limit the enjoyment of the rights and fundamental freedoms enshrined in the Bill of Rights. Despite the sacrificial lambs tag, activists such as Boniface Mwangi and John Githongo, lawyers like Yash Pal Ghai and Ekuru Aukot, politicians like Moses Kuria and Jakoyo Midiwo, must keep pushing the boundaries of the Bill of Rights for as long as possible so that at the end of the day ineffective outfits such as the National Cohesion and Integration Commission and the National Gender and Equality Commission are scrapped and the High Court is confirmed in its rightful place as the true arbiter of what the Constitution means.