Court declares sections of colonial law used to stifle protests unconstitutional


ODM Raila Odinga and his security ran away amid tearagas smoke outside the Anniversary Towers on 25th April 2016. [File, Standard]

The High Court has declared as unconstitutional sections of the law used by the Kenya Kwanza regime to  silence critics during the Azimio la Umoja One Kenya protests.

Justice Samwel Mohochi, in his judgment, declared that Section 77 of the Penal Code goes against freedom of expression.

The section made it a crime to criticise the government of the day and provided for seven years imprisonment for anyone found in breach.

The outlawed sections were borrowed from colonial masters and created an offense called subversion. The intent was to create ‘public order’.

At the same time, they also ‘protected the state security.’

Under the law, the British government perceived that critics were disobeying authority.

Even after promulgation of the 2010 Constitution, the draconian law remained in our statutes until Kenya Kwanza fished it out.

Justice Mohochi was of the view that there is nowhere in the Constitution that subversion is mentioned.

“This court thus finds that the provisions of Section 77 of the penal code are overbroad and vague, and that they limit the right to freedom of expression and there is lack of clarity as to the purpose and intent, and the limitation in Section 77 is not provided by law,”  ruled Justice Mohochi.

Some of the Azimio leaders who were charged with subversion include Embakasi East MP Babu Owino and Mathare MP Anthony Oluoch.

Section 77 provides that anyone found guilty of subversion should be jailed for a period not exceeding seven years.

The controversial law being used by the government to tame Azimio was introduced in 1960 to help suppress dissent. It was also used during the Mwakenya trials in the push for multi-party democracy.

The case was filed by the Law Society of Kenya, Katiba Institute, Kenya Union of Journalists, International Commission of Jurists, Bloggers Association of Kenya, and Africa Center for Open Governance.

Others are Article19, Kenya Human Rights Commission and Tribeless Youth. Joshua Otieno Ayika was also listed as an interested party.

Mr Ayika, who is a lawyer, was charged before Makadara Law Court over his tweets. He was accused of uttering words that are prejudicial to public order and security.

At the same time, he was accused of posting subversive words, which were allegedly calculated to cause panic and chaos among Kenyans.

In the case, the lobby groups’ lawyers Bosire Bonyi and Ochiel J Dudley argued that Section 77 is incompatible with the 2010 Constitution as it shields those in government from criticism.

At the same time, Bonyi and Ochiel asserted that the section also silences anyone who is interested in public affairs. According to the lawyers, Kenya belong to the citizens and cannot be silenced by the few they elect to govern on their behalf.

They also argue that the section is vague and too bold as it requires that anyone who plans or is involved in activities or utters words insinuating hate to the government should also be punished.

“Since none of the terms used in section 77 is attempted to be defined and as they are incapable of precise or objective legal definition and understanding the result is that innocent persons are roped in as well as those who are not enabling the authorities to be as arbitrary and as whimsical as they like in booking critics and dissenting voices under sections 77,” court papers read in part,” the court heard.

Further, the lobbies argued that the section leaves it to the magistrate to guess what action or utterance may be hateful or expresses displeasure against the powers that be.

Court papers read that drafters of the Penal Code never defined what is authority and what is hate against the government.

They asserted  that it is against the freedom of expression and association as anyone who assembles to critic the government is perceived to have hate against it.

“Since the section fails to strike a proper balance between the freedoms guaranteed in the Bill of Rights and the limitation clause in Article 24, but excessively invades the rights sought to be protected by the Petitioner, the sections are neither reasonable nor justifiable in an open and democratic society with proper respect for the rights of the individual,” Ochiel and Bosire argued.

In reply, the Inspector General of Police and the Director of Public Prosecution argued that Section 33 of the Constitution limits freedom of expression.

They claimed that propaganda to war, incitement to violence and hate speech are but among instances that the law kicks in.

The two also argued that section 77 was clear.