Geoffrey Andare v Attorney General & 2 others [2016] eKLR 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". 90. I have set out above the nature of the right to freedom of expression, and its importance in a free and democratic society. The respondents have asserted that the limitations in section 29 are justified in a free and democratic society. The questions that beg, bearing in mind the express provisions of Article 24 and the criteria in R vs Oakes are: what is the purpose of the limitation, and how important is it? What is the relationship between the limitation and its purpose? Are there less restrictive means to achieve the purpose intended? 91. The respondents’ argument, as I understand it, is that the purpose of the provision in the legislation was to protect the reputation of others. As a result, section 29 was inserted to criminalise the use of “licensed telecommunication systems.” 92. I have set out elsewhere above the stated purpose of the Kenya Information and Communication Act. Aside from being intended to establish the Communication Commission of Kenya (now, subsequent to the 2013 amendments, the Communication Authority of Kenya), and to provide for the transfer of the assets of the former Kenya Posts and Telecommunication Corporation to the Commission, its stated objectives relate to the regulation of the telecommunication system in Kenya, and “to facilitate the development of the information and communications sector (including broadcasting, multimedia telecommunications and postal services) and electronic commerce”. 93. As section 24, which deals with the issuance of telecommunication licences illustrates, the Act may not have been intended to apply to individual users of social media or mobile telephony. Section 24 titled “Telecommunication licences” provides as follows: (1) The Commission may, upon application in the prescribed manner and subject to such conditions as it may deem necessary, grant licences under this section authorising all persons, whether of a specified class or any particular person to— (a) operate telecommunication systems; or (b) licence. provide telecommunication services, of such description as may be specified in the 94. Individuals such as the petitioner and others who post messages on Facebook and other social media do not have licences to “operate telecommunication systems” or to provide telecommunication “as may be specified in the licence.” 95. Be that as it may, section 29 imposes penal consequences in terms which I have found to be vague and broad, and in my view, unconstitutional for that reason. Even if they were not, could the provision be permissible under Article 24? 96. The respondents were under a duty to demonstrate that the provisions of section 29 were permissible in a free and democratic society. They were also under a duty to demonstrate the relationship between the limitation and its purpose, and to show that there were no less restrictive means to achieve the purpose intended. They have not done this. http://www.kenyalaw.org - Page 17/20