Geoffrey Andare v Attorney General & 2 others [2016] eKLR “[96.] However, we bear in mind that the Constitution itself qualifies this presumption with respect to statutes which limit or are intended to limit fundamental rights and freedoms. Under the provisions of Article 24 …. there can be no presumption of constitutionality with respect to legislation that limits fundamental rights: it must meet the criteria set in the said Article.” 73. I am duly guided by the judicial pronouncements and constitutional provisions with respect to the interpretation of the question whether legislation or part thereof is in conflict with the Constitution, and I now turn to consider the provision of section 29 of the Act against these principles. Section 29 Kenya Information and Communication Act 74. The Kenya Information and Communication Act was enacted as an Act of Parliament to: …provide for the establishment of the Communications Commission of Kenya, to facilitate the development of the information and communications sector (including broadcasting, multimedia telecommunications and postal services) and electronic commerce to provide for the transfer of the functions, powers, assets and liabilities of the Kenya Posts and Telecommunication Corporation to the Commission, the Telcom Kenya Limited and the Postal Corporation of Kenya, and for connected purposes. 75. Section 29 thereof, which is titled “Improper use of system” provides that: A person who by means of a licensed telecommunication system— c. sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or d. sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both. 76. As noted above, the petitioner challenges this provision on two levels. He argues, first, that it is vague and over broad, and the words contained therein are not defined, therefore leaving room for various interpretation. 77. I have considered the words used in the section. I note that there is no definition in the Act of the words used. Thus, the question arises: what amounts to a message that is ‘grossly offensive’, ‘indecent’ obscene’ or ‘menacing character’? Similarly, who determines which message causes ‘annoyance’, ‘inconvenience’, ‘needless ‘anxiety’? Since no definition is offered in the Act, the meaning of these words is left to the subjective interpretation of the Court, which means that the words are so wide and vague that their meaning will depend on the subjective interpretation of each judicial officer seized of a matter. 78. It is my view, therefore, that the provisions of section 29 are so vague, broad and uncertain that individuals do not know the parameters within which their communication falls, and the provisions therefore offend against the rule requiring certainty in legislation that creates criminal offences. In making this finding, I am guided by the words of the Court in the case of Sunday Times vs United Kingdom Application No 65 38/74 para 49, in which the European Court of Human Rights stated as follows: http://www.kenyalaw.org - Page 13/20