Geoffrey Andare v Attorney General & 2 others [2016] eKLR legality which requires that a law, especially one that limits a fundamental right and freedom, must be clear enough to be understood and must be precise enough to cover only the activities connected to the law’s purpose. 10. The petitioner further contends that besides the creation of vague criminal offences which leaves it to the court’s subjective assessment whether a defendant is convicted or acquitted, the section offends the principle of legality that legislation ought not to be so vague that the subject has to await the interpretation given to it by judges before he can know what is and what is not prohibited; and that the haziness of the definition of the offence under the section leaves too wide a margin of subjective interpretation, misinterpretation and abuse in determining criminal penalties. 11. He argues, further, that since none of the terms are defined in the Act or are capable of precise or objective legal definition or understanding, the result is that innocent persons are roped in as well as those who are not. It was his averment that the section does not tell persons such as himself on which side of the line they fall, and this enables authorities to be as arbitrary and as whimsical as they like in booking persons under the section. 12. The petitioner further contended that the provision is void for vagueness by imposing an offence without defining the target and the conduct sought to be prohibited; that sub-section (a) does not peg the commission of the offence on the intention or ‘mens rea’ of the sender of the material allegedly causing harm, but merely whether the message is subsequently considered ‘grossly offensive’, ‘indecent’, ‘obscene’ or ‘menacing’ by an unnamed, indefinite and unspecified person. 13. The petitioner further argued that beside vagueness, the section has a chilling effect on his and the public’s freedom of expression and the right to seek or receive information or ideas. In his view, freedom of expression extends to the right to send messages of the kind prohibited by the section, and while the section limits freedom of speech and expression, the limitation falls outside the four grounds for limitation under Article 33 (2) of the Constitution. 14. It was also the petitioner’s contention that since the definition does not refer to what the content of the message can be, but only the medium through which such information is disseminated, the public’s right to information under Article 35 of the Constitution is directly affected. This is because the section further ropes in all information notwithstanding its artistic, academic or scientific value. 15. He further argued that since the message sent has to be grossly offensive, indecent, obscene or menacing or must have been sent for the purpose of causing annoyance, inconvenience or needless anxiety to another person, no distinction is made between mere discussion of a particular point of view which may cause anxiety or be annoying or inconvenient on one hand, and on the other hand, propaganda for war, incitement to violence, hate speech, or advocacy for hatred under Article 33 (2) (d) of the Constitution. 16. The petitioner argued therefore that the section does not amount to a reasonable and justifiable limitation of the freedom of expression as required under Article 24 of the Constitution. While the state was pursuing a legitimate objective, it has used means which are broader than is necessary to accomplish that objective, thereby violating his rights. For the DPP to enforce the provisions of the section at all, or against him in the pending criminal case, would be an insidious form of censorship which impairs a core value contained in Article 33 (1) of the Constitution. http://www.kenyalaw.org - Page 3/20