Geoffrey Andare v Attorney General & 2 others [2016] eKLR 97. As was observed in the CORD case, the state is entitled to impose limitations on the right to freedom of expression. However, such limitations must be on grounds which are permitted in the Constitution, which under Article 33(2) are propaganda for war, incitement to violence, hate speech, or advocacy of hatred. In that case, the Court stated as follows: “[259] As we understand it, the State can (and we believe, does) penalize the broadcast or publication of any expression that falls under Article 33(2), namely propaganda for war, incitement to violence, hate speech and advocacy to hatred. This new offence under the Penal Code that seeks to punish “insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace” thus limits the freedom of expression to a level that the Constitution did not contemplate or permit, and in a manner that is so vague and imprecise that the citizen is likely to be in doubt as to what is prohibited.” 98. I agree with the view expressed in the CORD case. Section 29 imposes a limitation on the freedom of expression in vague, imprecise and undefined terms that go outside the scope of the limitations allowed under Article 33 (2) of the Constitution. The respondents have not been able to show that such limitations are permissible under Article 24, or that they are the least restrictive means available. If the intention is to protect the reputations of others the prosecution of mean spirited individuals who post defamatory statements on social media does not achieve that. I believe that libel laws provide for less restrictive means of achieving this purpose - see the case of Arthur Papa Odera vs Peter O. Ekisa, Civil suit No 142 of 2014 in which the reputation of the plaintiff, who alleged defamation in postings on social media by the defendant, was vindicated in a civil process by an award of Kshs.5m in damages to the plaintiff against the defendant for libel. 99. In the circumstances, it is my finding that the provisions of section 29 of the Kenya Information and Communication Act are also unconstitutional for violating Article 33 of the Constitution, and therefore null and void. Absence of Mens Rea 100. The petitioner and Article 19 argue that section 29 of the Act is unconstitutional and violates Article 50(2)(n). Their argument, as I understand it, is, first, that the absence of the requirement of mens rea offends the central thought that a defendant must be blameworthy in mind before he can be found guilty. 101. I believe that it is not in dispute that crimes involve both blameworthy acts and blameworthy mental elements or state of mind on the part of the accused person. In R. Balakrishna Pillai vs State of Kerala, Criminal Appeal No. 372 of 2001, the Indian court addressed its mind to the question of mens rea vis-à-vis criminal offences. While quoting Blackstone, the court observed that: “To consider yet another aspect, the general principle of criminal jurisprudence is that element of mens rea and intention must accompany the culpable act or conduct of the accused. In respect of this mental element generally, the Blackstone's Criminal Practice describes it as under: "In addition to proving that the accused satisfied the definition of the actus reus of the particular crime charged, the prosecution must also prove mens rea, i.e., that the accused had the necessary mental state or degree of fault at the relevant time. Lord Hailsham of St Marylebone http://www.kenyalaw.org - Page 18/20