The Internet and the Constitution:Freedom of Expression


“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
― George Orwell

The freedom to express and receive information has not only been a defining value of the information society but is also hard-wired into the architecture of the Internet – an open and collaborative platform where people freely and in most cases anonymously share information and ideas.[1] Existing as well as emerging communications technologies have redefined the way regulatory authorities look at information censorship and thrown into redundancy traditional means of controlling the flow of information within and outside their national boundaries.

The provision for freedoms of expression provided for under Article 33[2] of new Constitution is expanded to include artistic expression as well as academic and scientific freedom. This presents a shift from the past where divergence was sometimes taken as opposition and it should create an opportunity in the ICT sector for acceptance of alternative information systems and software. However, the freedom does not extend to propagation of war, incitement to violence, hate speech and advocacy of hatred.[3]

In the previous Constitution, freedom of expression was guaranteed under section 79(1). The right encompassed freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.


[1] See Michael Murungi, Kenya’s New Constitution Sets New Standards for Privacy and Data Protection,available at http://michaelmurungi.blogspot.com/2011/01/kenyas-new-constitution-sets-new.html (last accessed on 18/7/2011).

[2] Article 33(1) of the new Constitution provides that :

Every person has the right to freedom of expression, which includes –

a.freedom to seek, receive or impart information or ideas;

b.freedom of artistic creativity; and

c.academic freedom and freedom of scientific research

[3]  Article 33(2) of the Kenyan constitution.

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