Why lawyer wants colonial treason law scrapped

Petition concept illustrated with legal text on a sticker and a judge’s gavel. [File Courtesy]

Treason could be struck from Kenya’s statute books if the High Court agrees with lawyer John Obwogi that the colonial era offence is inconsistent with the 2010 Constitution.

In his petition, Obwogi argues that treason is a vague colonial relic, often used to stifle freedom of expression and legitimate demands for good governance. He contends that the law was crafted by colonial authorities to suppress political dissent and enforce compliance with authoritarian rule.

He further argues that Section 40(1) and (3) of the Penal Code is inconsistent with Articles 24, 26(3), 29, 33, 37, 38, 47, and 50(2)(a) and (g) of the Constitution saying it fails to strike a proper balance between national security and the protection of freedom of expression, assembly and political rights. Treason carries a mandatory death sentence.

Obwogi maintains that following the Supreme Court’s judgment declaring the mandatory death penalty in murder cases illegal, imposing the same punishment for treason is equally unlawful.

He asserts Kenya has evolved from a colonial state into a democracy and cannot continue to rely on inherited British laws to suppress political expression and participation.

The lawyer said other countries, such as South Africa, the United States of America, and the United Kingdom, have either abolished treason or amended the offence to reflect modern realities. He added that many democracies have also scrapped mandatory death sentences.“Colonial-era criminal provisions were designed to suppress political dissent. The mere existence of Section 40, with its vague language and capital punishment, deters citizens from exercising their constitutional rights to freedom of expression, assembly, and political participation,” said Obwogi.

Section 40 was enacted in 1930 and used to criminalise advocacy for independence. The lawyer told the court that it was deliberately crafted to target the Mau Mau movement and silence criticism of the then colonial government, and prevent political organisation against the colonial rule.

He further urges that aspects of the provision, such as criminalising the mere imagination of the President's death or broadly defining acts like maiming, wounding, or overthrowing a government, are overly vague and wide-ranging, leaving room for abuse by state operatives.

At the same time, he argues that the phrase “unlawful means” leaves room for guesswork, as it does not clearly state whether removing a president through elections, impeachment proceedings, or peaceful protests is lawful.

He contends that even a political speech calling for a president to resign could be interpreted as an overt act by those keen to preserve the status quo. “This term criminalizes mere mental states without any requirement for action. A person can “imagine” the overthrow of a government without any intention of acting on such thoughts. Criminalising imagination alone is fundamentally incompatible with the constitutional guarantee of freedom of thought under Article 32,” Obwogi argues.

He said Gen Z protesters carrying “Ruto Must Go” placards ended up as victims of what he termed a draconian law.