Geoffrey Andare v Attorney General & 2 others [2016] eKLR suffer unwarranted conviction, or even prosecution. Its argument was therefore that the section casually imposes an offence without interrogating the intention and or frame of mind of the sender of the message at the time the message is sent. Further it only asks whether the message sent is considered grossly offensive, indecent, obscene or menacing by an unspecified person. In its view, to subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the Constitution’s sense of justice; and no law which violates this fundamental instinct should endure, for crimes punishable with prison sentences ordinarily require proof of a guilty intent. 29. Article 19 further argued that the section offends Article 50 (2) (n) of the Constitution. It submitted that the section violates criminal law principles by not requiring a guilty mind as a precursor to guilt, and that its applicability has a chilling effect on the petitioner’s and the public’s freedom of expression. 30. With regard to the charges that the petitioner is facing, Article 19 submitted that one can deduce that the reason the DPP chose to ignore the entire message and zero in on specific words was to escape the requirement of mens rea. It observed that the entire post comprised of 197 words and three paragraphs, and the DPP was not at all concerned with the petitioner’s frame of mind. In any event, the post, read wholesomely, reveals a frame of mind which is not hell bent on insulting anyone but rather concerned about public good and protecting the disenfranchised. 31. Article 19 further submitted that the section creates an offence without regard or reference to the mandatory requirements of Article 33 (2) of the Constitution. It contended that a plain reading of the section reveals that it purports to invent its own categories of limitation that are outside the constitutionally sanctioned limitations, and it is therefore unconstitutional for unjustifiably limiting freedom of expression. 32. While relying on R vs Oakes (supra), Article 19 took the position that it lies upon the one seeking to limit a fundamental right in a free and democratic society to justify the upholding of any such limitation of rights. It urged the court to follow the decision in Obbo and Another vs Attorney General (supra) on the question of what amounts to a reasonable and justifiable limitation. It therefore prayed that the petition be allowed and the orders sought therein be granted. The 1st Respondent’s Case 33. In response to the petition, the Attorney General filed written submissions dated 23rd June, 2015 in which he urged the Court to dismiss the petition as it was a backdoor way of asking the Court to usurp the powers of the trial court and determine the sufficiency of the evidence against the petitioner. 34. In his submissions, the AG emphasised the principle of interpretation of statutes that was to the effect that a legislative enactment ought to be construed as a whole, and that in interpreting a statute, courts ought to adopt such a construction as will preserve the general legislative purpose underlying the provision. The AG relied in support on, among others, the decisions in Edward Mwaniki Gaturu and Another vs Hon. Attorney General and 3 Others [2013] eKLR; Republic vs Lucas M. Maitha Chairman Betting and Licensing Board and 2 Others ex parte Interactive Gaming and Lotteries Limited [2015] eKLR; and Abdi Sitar Yusuf vs Attorney General and 2 Others [2013] eKLR in which Courts had considered the principles applicable in constitutional and statutory interpretation. http://www.kenyalaw.org - Page 6/20