REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS (CONSTITUTIONAL AND HUMAN RIGHTS DIVISION)

PETITION NO. OF 2012 IN THE MATTER OF ARTICLES 2(6), 19, 20, 21, 22, 23, 26, 33, 34,35,46 159 & 259 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA 2010 AND IN THE MATTER OF THREATENED AND ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(6), 33, 34, 35 AND 46 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA 2010 BETWEEN DENNIS ITUMBI.... .PETITIONER AND DIRECTOR OF CRIMINAL INVESTIGATIONS DEPARTMENT.....1ST RESPONDENT COMMISSIONER OF POLICE....2ND RESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS.....3RD RESPONDENT HONOURABLE ATTORNEY GENERAL.....5TH RESPONDENT THE CHIEF MAGISTRATE MILIMANI LAW COURTS6TH RESPONDENT AND JETLINK EXPRESS LIMITED.......................................................INTERESTED PARTY PETITION To: The High Court of Kenya Constitutional and Human Rights Division
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NAIROBI

THE HUMBLE PETITION OF DENNIS ITUMBI WHOSE ADDRESS OF SERVICE FOR THE PURPOSE OF THIS PETITION IS CARE OF CHELANGA & COMPANY ADVOCATES, SCRIPTURE UNION CENTRE, 2ND FLOOR, ARGWINGS KODHEK ROAD-HURLINGHAM P.O BOX 29166-00100 NAIROBI IS AS FOLLOWS: 1.0
1.1

THE PARTIES The Petitioner is male adult of sound mind residing and working for gain as a journalist within and without the Republic of Kenya. The 1st Respondent is the Head of the Criminal Investigation Department (CID) a specialized investigation agency within the Kenyan Police Force. The 2nd Respondent is the Head of the Kenya Police charged with the overall administrative management, general superintendence, direction and control of the police force under the law and established standing orders. The 3rd Respondent is the office of the Director of Public Prosecutions of the Republic of Kenya as established under Article 157 of the Constitution of Kenya with the mandate to institute, undertakes and terminate criminal proceedings. The 4th Respondent is the Honourable Attorney General of the Republic of Kenya who has been sued in this Petition as legal representative of the Government of Kenya duty bound to promote, protect and uphold the rule of law and defend public interest. The Interested party is a limited liability company duly organized under the laws of Kenya and carrying on business of inter-alia domestic and regional commercial air transport and one of the leading airlines in this respect.

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The Respondents are pursuant to Articles 2, 3 and 73 of the Constitution of Kenya bound and obliged to respect uphold and defend the Constitution in discharge of their duties.

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JURISDICTION This case seeks relief for alleged and apprehended violation of the rights and fundamental rights and freedoms of the Petitioner by the actual as well as imminent actions of the Respondents and thus this Honourable Court has jurisdiction under Articles 22, 23 and 165(3) (b) of the Constitution to enforce protection of such rights.

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FACTS AND BACKGROUND OF THE PETITION

The Petitioner was at the time material to this Petition and is an international journalist employed as Bureau Chief with South Africas Journalism.co.za, a continental media think tank. The Petitioner owns and is a publisher of a group of county based Newspapers by the Title The County Newspaper with wide circulation within the Republic of Kenya. In addition, the Petitioner is an active journalist in the World Wide Web and blogosphere.
There exists a webpage site known as Dennis Ole Itumbi Online. Sometimes in June 2012, it is alleged that there appeared on the Dennis Ole Itumbi Online a story titled Jetllink: Dangers in Our Skies, Revelations of leaked Emails alluding to the fact that the Interested Party had flown unairworthy planes endangering the safety of their passengers. The said story also published leaked email correspondences between the Interested Partys staffers confirming the state of the aircrafts and the customer complaints. The story attributes the leaked mails to some source which is not disclosed, a commonplace within investigative journalism practice.

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The story being of great public interest generated great public attention and debate in the online community over the safety of the Interested Partys planes. In response to the said story, the Interested Party did not dispute the correctness of the leaked mails but sought to strenuously defend the safety of its planes and professionalism of its customer service. The Interested Party in fact threatened to institute civil proceedings against the Dennis Ole Itumbi online. In a spectacular twist of events, the Petitioner was summoned by the 1st Respondent officers attached at its Cyber Crime Department over the publication. The 1st Respondent tried to use its coercive force and powers to compel the Petitioner to disclose the sources of the leaked emails which the Petitioner could not budge and informed them he would not disclose or reveal any source of journalists story contrary to the Code of Conduct of for the Practice of Journalism. As a result of the petitioners refusal to disclose the source of said story and leaked mails, the 1st and 2nd Respondents threatened to commence criminal proceedings against the Petitioner and true to their threat the Petitioner was arraigned in court on 29th August 2012 to face the charges of intercepting emails and publishing depraving materials contrary to sections 83W and 84D respectively of the Kenya Information and Communication Act under Milimani Chief Magistrates Court Criminal Case Number 1319 of 2012, Republic vs. Dennis Itumbi The prosecution of the Petitioner is an attempt to compel the petioner reveal his journalistic sources and therefore prejudicing his professional undertaking to the sources to shield their identity and protect them. The petitioner cannot meaningfully defend himself in this case without disclosing his journalistic sources which is firmly protected under the constitution and international legal instruments.

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The conduct of the Respondents at the behest of the Interested Party effectively criminalizes a civil dispute, abuse of criminal justice process thereby infringing and threatening to contravene the fundamental rights and freedoms of the Petitioner as set out herein. THE CONSTITUTIONAL PROVISIONS AND MANNER INFRINGEMENT AND THREATENED INFRINGEMENT Freedom of Expression has the right to freedom of expression, which includes freedom to seek, receive or impart information or ideas. OF

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5.1.1 Article 33 (1) of the Constitution provides thusly Every person

5.1.2 Freedom of expression is the bedrock to free press without which

journalists cannot carry on their business as the public watch dog. This freedom of express purposively includes the freedom of journalists to seek and receive confidential information from confidential sources with the duty not to disclose the said sources. In fact Regulation 7 of the Code of Conduct of Practice of Journalism under the Second Schedule of the Media Act of 2007 commits journalists to professional obligation to protect confidential sources of information.
5.1.3 Freedom of expression cannot be meaningfully enjoyed especially

by the fourth estate if confidential sources of journalists story is not shielded and protected. In over-emphasizing the same, Lord Denning in British Steel Corporation v. Grenada Television Limited (1980) AC 1096 at 1129 stressed that:
If they [the journalists] were compelled to disclose their source, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power - in companies or government departments would never be known. 5.1.4 By

dint of Article 2(6) of the Constitution, treaties and conventions ratified by Kenya shall form part of the laws of

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Kenya. Accordingly therefore the United Nations Declarations on Human Rights and African Charter on Human Rights form part of the laws of Kenya.
5.1.5 Article 19 of the United Nations Declaration on Human Rights

recognizes freedom of expression. The Commission on Human Rights and Special Rapporteur on Freedom of Expression and Opinion recognize protection of journalistic sources as protection of Article 19 right and that compulsion to reveal sources should be in limited circumstances. The commission also calls for member states to protect journalists sources. 5.1.6 Article 9 of the African Charter on Human Rights also protects freedom of expression. The African Commission on Human and Peoples Rights 2002 Declaration on Principles of Freedom of Expression in Africa also provides for the general protection of sources and other materials.
5.1.7 In the circumstance, the Petitioners source of story is sacrosanct

and protected by the constitution and the law. The criminal case against the petition is impermissible compulsion of the Petitioner to disclose his sources through the back door. The petitioner cannot meaningfully put in a good defence in the criminal charges against him without him disclosing the sources of the story and therefore contravening his right to expression and put at risk his art of investigative journalism. What is on trial is source of the story as opposed to any criminal vindication.
5.1.8 The conduct of the Respondents shall have a far reaching effect

in investigative journalisms news gathering and reporting making journalism onerous and impossible.
5.1.9 The purpose in which the Interested Party with the aid of the 1st

Respondent have invoked criminal law in the dispute in question is in no way to vindicate criminal justice but patently ulterior and extraneous role to impermissibly tinker with civil dispute between the Petitioner and Interested Party contrary to public policy.

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5.1.10 The Petitioners had legitimate expectation that his rights and

freedom of expression would be firmly protected and therefore would not face prosecution over what he did in the ordinary course of his business and professional calling. The Petitioner has as a result been denied equal protection and benefit of the law. 5.2 Freedom of the Media Constitution particularly provides that the state shall not exercise control or interfere with any person engaged in broadcasting, production or circulation of any publication or dissemination information by any medium. The state further shall not penalize any person for any opinion or view or the content of any broadcast, publication or dissemination. 5.2.2 Effectively therefore a person engaged in dissemination of information electronically or otherwise shall not be gagged by the state by either interfering with such dissemination or penalizing the person for the opinion taken or contents of publication.
5.2.3 The

5.2.1 Subject to the limitations under Article 33 (2), Article 34(2) of the

court is hereby called to take judicial notice of the development of the media from the mainstream print and electronic media to modern day online media houses, blogosphere and other World Wide Web based media also protected by the constitution. effectively muzzles and interferes with the media in addition to penalizing the petitioner for the contents of a publication or for holding a particular opinion rendering the charges unconstitutional.

5.2.4 The charges against the petitioner and the resultant prosecution

5.2.5 Unchecked

and unhindered by this Honourable Court, the Respondents may therefore proceed with the criminal charges against the petitioner to the infinite detriment to the freedom of the media.

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5.2.6 The Petitioners freedom of the media under Article 34 of the

Constitution has therefore been infringed and under imminent threat. 5.3 Right to Access to Information Constitution extends to the right to access information held by another person and required for the exercise or protection of any right or fundamental freedom. This provision ought to be read together with Article 33 of the Constitution (para 4.1 above) to give it a meaningful interpretation to include right to seek and receive information.
5.3.2 The Petitioner in carrying out his investigative journalism and in

5.3.1 The right to access to Information under Article 35 of the

exercise of his freedom of expression more particularly exposing the safety in the air transport had the right to seek, receive and access information for this particular purpose. The Petitioner had the right to lawfully access such information through anonymous and confidential sources which he is now being penalized for.
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It is therefore unlawful and unconstitutional to subject the petitioner through a criminal process for exercising a constitutionally afforded right. Consumer Rights offered by the Interested Party and in the circumstance enjoys quantum of rights under Article 46 of the Constitution to services of reasonable quality and attendant information including his safety is he decides to use the Interested Partys planes.

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5.5.1 The Petitioner is a consumer of public air transport services

5.5.2 Prosecution of the Petitioner because of access to and publication information pertinent to him as a consumer and also the general public runs against the grain of the consumer rights.
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The cumulative acts and omissions of the Respondents grossly violate and threaten to violate the Petitioners constitutional right to freedom of expression, freedom of the media, right to access

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to information and consumer rights. The Respondents conduct fails in all scores the test of rule of law, due process and Constitutionalism which obligates all state institutions including the Respondents and this Honourable Court to protect, respect and defend.
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Unless restrained, the Respondents shall imminently breach, subjugate and otherwise violate the Petitioners inalienable constitutional rights as set out above. It is in the interests of fairness, justice and enforcement of the constitution that this petition be allowed.

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YOUR PETITIONER THEREFORE HUMBLY PRAYS THAT: 1. Pending the hearing and determination of this Petition, conservatory Orders be issued in terms of the Chamber Summons filed herewith.
2. A declaration be issued to declare that the Respondents conduct

infringed the Petitioners rights under Articles 33, 34, 35 and 46 of the Constitution.
3. The Honourable Court be pleased to The Honourable Court be

pleased to uphold the Petitioners right under Articles 33, 34, 35 and 46 of the Constitution by issuing an order of certiorari of removing to the this court and quashing the charges in Milimani Chief Magistrates Criminal Case Number 1319 of 2012, Republic vs. Dennis Itumbi.
4. The Honourable Court be pleased to uphold the Petitioners right

under Articles 33, 34, 35 and 46 of the Constitution by issuing an order of prohibition prohibiting the Respondents by themselves, their agents and or officers or other persons acting on the authority of the Respondents from arresting, detaining, preferring any charges in way whatsoever interfering with the liberty and freedom of the petitioner on any matter arising from the publication of Jetlink: The Danger in Our Skies, Revelation of leaked Emails
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5. The Costs of the Petition be awarded to the Petitioner. DATED at NAIROBI this 2012. day of

CHELANGA & COMPANY ADVOCATES FOR THE PETITIONERS

Drawn & Filed by: Chelanga & Company Advocates Scripture Union Centre,2nd Floor RM.202 Argwings Kodhek Road-Hurlingham P.O. Box 29166 00100 NAIROBI Email:info@chelangadvocates.com TO BE SERVED UPON: 1. The Director, Criminal Investigations Department Mazingira Complex Opposite Forestry Department Headquarters Kiambu Road NAIROBI 2. The Commissioner of Police Vigilance House Harambee Avenue NAIROBI Director of Public Prosecutions NAIROBI Hon. Attorney General

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State Law Office Sheria House Harambee Avenue NAIROBI

Jetlink Express Limited NAIROBI

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS (CONSTITUTIONAL AND HUMAN RIGHTS DIVISION) PETITION NO. OF 2012 IN THE MATTER OF ARTICLES 2(6), 19, 20, 21, 22, 23, 26, 33, 34,35,46 159 & 259 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA 2010 AND IN THE MATTER OF THREATENED AND ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2(6), 33, 34, 35 AND 46 OF THE CONSTITUTION OF THE REPUBLIC OF KENYA 2010 BETWEEN DENNIS ITUMBI.... .PETITIONER AND DIRECTOR OF CRIMINAL INVESTIGATIONS DEPARTMENT.....1ST RESPONDENT COMMISSIONER OF POLICE....2ND RESPONDENT DIRECTOR OF PUBLIC PROSECUTIONS.....3RD RESPONDENT
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HONOURABLE ATTORNEY GENERAL.....5TH RESPONDENT THE CHIEF MAGISTRATE MILIMANI LAW COURTS6TH RESPONDENT AND JETLINK EXPRESS LIMITED.......................................................INTERESTED PARTY SUPPORTING AFFIDAVIT

I, DENNIS ITUMBI of Post Office Box Number 2584-00100 Nairobi in the Republic of Kenya do hereby make oath and state as follows:
1.

THAT I am the Petitioner herein and therefore competent to swear this affidavit. THAT I have read and understood the petition filed herewith and do swear this affidavit in support thereof. THAT I am an international journalist employed as Bureau

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Chief with South Africas Journalism.co.za, a continental media think tank. I own a publisher of a group of county based Newspapers by the Title The County Newspaper with wide circulation within the Republic of Kenya. I am also active journalist in the World Wide Web and blogosphere where I am biased towards investigative journalism.
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THAT sometimes in June 2012, it is alleged that there appeared in the Dennis Ole Itumbi Online a story titled Jetllink: Dangers in Our Skies, Revelations of leaked Emails alluding to the fact that the Interested Party had flown planes which are unfit for the flying and thereby endangering the safety of their customers. The said story also published leaked email correspondences between the Interested Partys staffers confirming the state of the aircrafts

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and the customer complaints. The site however does not disclose the source of the leaked mails. Annexed hereto and marked DI1 is a print out from the said site and the published leaked mails.
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THAT the said story being of great public interest generated great public attention and debate in the online community over the allegations raised in the said mails since the interested party is a public air transport locally and regionally. THAT the Interested party published a rejoinder online in response to the story, the interested party did not dispute the correctness of the leaked mails but sought to strenuously defend the safety of its planes and professionalism of its customer service. The Interested Party in fact threatened to institute civil proceedings against the Dennis Ole Itumbi online. Annexed hereto and marked DI-2 are copies of the online responses from the Interested Party and threat to institute civil proceedings. THAT after such demand notice I was summoned by the 1st Respondent officers attached at its Cyber Crime Department over publication. The 1st Respondent tried to use its coercive force and powers to compel me to disclose the sources of the leaked emails which the I could not do without contravening the Code of Conduct of for the Practice of Journalism and blowing the cover of my sources if any. THAT as a result of my refusal to disclose the source of said story and leaked mails, the 1st and 2nd Respondents threatened to commence criminal proceedings against me and true to their threat I was arraigned in court on 29th August 2012 to face the charges of intercepting emails and publishing depraving materials contrary to sections 83W and 84D respectively of the Kenya Information and Communication Act under Milimani Chief

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Magistrates Court Criminal Case Number 1319 of 2012, Republic vs. Dennis Itumbi
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THAT I firmly believe that my prosecution is an attempt to compel me to reveal my journalistic sources of story and therefore prejudicing my professional undertaking to the sources to shield their identity and protect them. THAT I cannot meaningfully defend myself in this case without disclosing my journalistic sources which is firmly protected under the constitution and international legal instruments. THAT the conduct of the Respondents at the behest of the Interested Party effectively criminalizes a civil dispute, abuse of criminal justice process thereby infringing and threatening to contravene my fundamental rights and freedoms of the Petitioner as set out below. THAT I am advised by my counsel on record whose advise I verily believe to be sound that freedom of expression is the bedrock to free press without which journalists cannot carry on their business as the public watch dog. This freedom of express purposively includes the freedom of journalists to seek and receive confidential information from confidential sources with the duty not to disclose the said sources. THAT I am aware of Regulation 7 of the Code of Conduct of Practice of Journalism under the Second Schedule of the Media Act of 2007 commits me to professional obligation to protect confidential sources of information. THAT I am advised by my counsel on record Mr. Moses K. Chelanga whose advice I verily believe to be true that by dint of Article 2(6) of the Constitution, treaties and conventions ratified by Kenya form part of the laws of Kenya. Accordingly therefore

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the United Nations Declarations on Human Rights and African Charter on Human Rights form part of the laws of Kenya. Such international legal instruments expressly provide for the protection of journalists sources.
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THAT I firmly believe that I cannot be in a position to defend myself in the criminal charges facing me in the case without putting my sources at risk and breaching my solemn professional duty thereby infringing my freedom of expression, media and right to access to information as expounded in the body of this petition. THAT I also believe that the state is using coercive force of investigation and prosecution to interfere with my investigative journalism and penalizing contents of publication in Dennis Ole Itumbi online. THAT I also a private citizen and a consumer of public air transport and I am entitled to quality services such that publishing my concerns about the safety of our skies and accessing information on the same is within the law. THAT in light of the charges against me, the continued investigation and looming prosecutions, it has become difficult for me to exercise my calling and career as an online journalist and therefore source of livelihood. I cannot meaningfully pursue career of my choice. THAT I am advised by the Petitioner advocates on record whose advice I verily believe to be sound that the conduct of the 1st Respondent at the behest of the Interested Party effectively criminalizes a civil dispute between the Petitioner and the Interested Party thereby infringing and threatening to contravene the fundamental rights and freedoms of the Petitioners more particularly as set out in the Petition herein.

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20.

THAT what is deponed to herein-above is true to the best of my own knowledge save as to matters deponed to on information sources whereof have been disclosed and matters deponed to on belief grounds whereupon have been given. ) ) ) )

SWORN by the said DENNIS ITUMBI this day of 2012.

BEFORE ME ) ) COMMISSIONER FOR OATHS

DRAWN AND FILED BY:Chelanga & Company Advocates Scripture Union Centre,2nd Floor RM.202 Argwings Kodhek Road-Hurlingham P.O. Box 29166 00100 NAIROBI Email:info@chelangadvocates.com

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