In August 2010, Kenyans ushered in a new constitutional order. The Constitution of Kenya 2010 (COK 2010) entrenched freedoms with a clarity never before seen, including Articles 33, 34, and 35 on expression, media, and access to information.
Fifteen years later, freedom of expression remains both foundational and fragile. Courts have built a robust jurisprudence, yet regulators have often stumbled. Cary Coglianese’s insight that regulation is a verb, demanding vigilance and action, captures the ongoing struggle to balance liberty and order. Enforcement of expression cannot be static. It must adapt to shifting realities, without betraying the constitutional promise.
This commentary marks fifteen years of COK 2010 by revisiting freedom of expression jurisprudence through Coglianese’s five categories: changes in the world, human behavior, knowledge, tools, and institutions. It argues that the future of free expression in Kenya depends on whether regulators and courts embrace regulation as a living process.
Changes in the World: Protests and Shutdowns
Kenya’s political landscape has repeatedly tested expression. On 30 January 2018, major television stations were switched off during Raila Odinga’s mock swearing-in. In Law Society of Kenya v Director General, Communication Authority of Kenya & 3 others; Royal Media Services Limited & 2 others (Interested Parties) [2024] KEHC 7346 (KLR) , the court held that The Constitution does not provide for any other form of a President of the Republic. Therefore, the phenomenon of a ‘Peoples’ President’, propounded by the Rt. Hon. Raila Odinga and his supporters, was not only foreign to the land, but also in direct contravention of article 3(2) of the Constitution and that the petitioner did not, therefore, demonstrate that the respondents’ impugned action contravened the Constitution and the law. Conversely, the respondents demonstrated that they acted within the limitations of the freedom of the media in line with article 24 of the Constitution and the law.in 2023, in yet another broadcast ban the HighbCourt in Republic v Chiloba, Director General Communications Authority of Kenya; Katiba Institute & 5 others (Exparte Applicants) [2023] KEHC 23791 (KLR) An order of Certiorari is hereby issued to bring to this court and to quash the Communication Authority’s decision of 22nd March,2023 tocensure six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20th March,2023.
2) A declaration is hereby issued that:
- Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 unconstitutionally limits the freedom of expression, media, and information in vague and overbroad terms contrary to Articles 33, 34, and 35 of the Constitution; and
- The Programming Code for Broadcasting Services in Kenya, 2019 has expired and is of no legal effect under 46H(2)(b) of the Kenya Information and Communications Act, 2009 and section 11(1) and (4) of the Statutory Instruments Act, 2013 as a result of which Clause 10.2.1 of the Programming Code does not sustain the CA’s decision.
Recently on 25th June 2025, the Communications Authority ordered a blackout of live protest broadcasts. The High Court Justice Chacha Mwita following a petition filed at the Milimani High Court issued a conservatory order suspending, with immediate effect, the directive REF No. CA/CE/BC/TV90A or any other directive issued by the Communication Authority of Kenya to all Television and Radio Stations directing them to stop live coverage of the demonstrations of 25th June 2025 or any other demonstrations, until the hearing and determination of the application and petition,”
These moments show that crises in the world tempt governments toward blunt bans. A dynamic approach requires nuance, targeting incitement or violence without extinguishing coverage wholesale.
Changes in Human Behavior: Digital Mobilisation
Kenyan citizens now inhabit both physical and digital squares. Hashtags mobilise marches; livestreams replace pamphlets. Protest is no longer a crowd on Moi Avenue but a hybrid movement online and offline.Government responses have shifted too, using cybercrime laws and broadcast directives to suppress dissent.This caution applies equally to broadcast bans. Enforcement that ignores the way citizens communicate today risks hollowing out Article 33. Regulation must meet people where they are, not force them into silence.
Changes in Knowledge: Media Pluralism
Over fifteen years, Kenyan courts have refined their understanding of how media sustains democracy. In the digital migration decision, Communications Commission of Kenya v Royal Media Services Ltd & 5 others [2014] eKLR—the Supreme Court explained … .These insights underscore that bans on live broadcasts shrink, not expand, pluralism. Courts now possess deep knowledge of the media’s democratic role. Enforcement must reflect that learning.
Changes in Tools: Programming Codes and Statutory Gaps
Regulation relies on tools. Some have proved defective. IN Republic v Chiloba, Director General Communications Authority of Kenya; Katiba Institute & 5 others (Exparte Applicants) [2023] KEHC 23791 (KLR) the High Court ruled a broadcast ban invalid because the Programming Code “had not been tabled in Parliament and therefore did not constitute law.”In [2025] KECA 670 (KLR) the Court of Appeal refused to stay THE High Court judgment that struck down sections of the Kenya Information and Communications Act. The judges insisted it was “not in the public interest” to preserve unconstitutional provisions.These rulings reveal that outdated or procedurally flawed instruments cannot ground censorship. Regulation must evolve with tools that are lawful, precise, and constitutionally sound.
Changes in Institutions: Courts as Guardians
Institutions have also shifted in fifteen years. Parliament sometimes legislates ambitiously, but courts have consistently defended expression. since the early wins of the Constitution of Kenya 2010 in the case of Jacqueline Okuta & Another V Attorney General & 2 Others [2017] Kehc 8382 (Klr)the high court by holding that the criminalization of defamation unreasonably restricts expression and cannot be justified where civil remedies are sufficient and thus set the bar high on limitations to article ,33 and 34 of the constitution. That logic cuts through broadcast bans. Peaceful protest coverage is not an articulable threat.
Prior Restraint Is Still Unlawful
Fifteen years of COK 2010 confirm a baseline: prior restraint is unconstitutional. Expression cannot be silenced in advance unless it amounts to incitement or creates imminent harm. Coverage of peaceful or even contentious protests falls far short of that threshold.By imposing a blackout on June 25, 2025, CAK revived a doctrine the Constitution had buried. The directive echoes pre-2010 authoritarian controls. It violates the letter and spirit of Articles 33, 34, and 35.
Regulation as a Verb: The Road Ahead
Coglianese’s idea of regulation as a verb crystallises what Kenya has learned in fifteen years. Enforcement of expression must be continuous and context-sensitive.
- World changes: protest and crisis demand proportionate responses, not blanket bans.
- Human behavior: speech migrates to digital platforms; enforcement must adjust without criminalising participation.
- Knowledge: courts recognise pluralism as essential; regulators must respect that.
- Tools: outdated codes and unconstitutional statutes cannot be relied on.
- Institutions: courts will continue to check executive overreach.
Dynamic enforcement means using lawful, narrowly tailored measures to address real harms, while leaving space for dissent and debate.
Conclusion: A Living Promise
Fifteen years after COK 2010, freedom of expression is both secure and embattled. Courts have affirmed it in judgments striking down shutdowns, rejecting vague laws, and insisting on pluralism. Regulators, however, have too often treated it as negotiable.
The June 25 blackout is a reminder: the promise of 2010 survives only if enforcement is vigilant and adaptive. As Mwita J. put it in 2018, “there is no justification” for silencing oppositional voices. That sentiment remains the benchmark.COK 2010 was never meant to be self-executing. It requires regulators who act with restraint and courts who enforce with clarity. Freedom of expression is not a one-time guarantee but a living process, always in need of protection. Fifteen years on, the Constitution still speaks. The task is to keep listening, and to keep it alive.