A Nakuru Court on Monday declared Section 77(1) and (3) of the Penal Code on subversion activities unconstitutional.
This was out of a petition that was filed by lawyer Joshua Otieno Ayika.
He had been charged in court after he tweeted saying, “I am not a prophet, neither am I a soothsayer but get it from me, we might have the army taking over from this “Biblical regime” prepare for an army to take over government for the next 90 days then we shall have elections.”
The impugned section 77 provides that “any person who does or attempts to do or makes any preparations to do or conspires with any person to do, any act with a subversive intention or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.”
Subversive means inciting to violence or other disorder or crime or counselling defiance or disobedience to the law or law full authority.
Justice Samwel Mukira Mohochi held that the said section is a limitation on the freedom of expression, over broad and vague and not provided for by law.
“No criminal prosecution may be sustained under the said provision and the director of public prosecution has the constitutional mandate to determine whether or not to proceed with the prosecution of the lawyer with regards to the facts alleged against him should they disclose an offence under any other provision of law,” Justice Mohochi ruled.
Ayika was arraigned and charged on July 2023, with “subversive activities” contrary to section 77(1)(a) of the Penal Code.
He was also charged on the second count with “publication of false information” contrary to section 23 of the Computer Misuse and Cybercrime Act.
According to the prosecution as particularized on Ayika’s charge sheet, the words “were prejudicial to the public order and security of Kenya and which information was calculated to cause panic and chaos among citizens of the republic of Kenya.”
This prompted the Katiba Institute, Law Society of Kenya, Kenya Union of Journalists and six others to move to court seeking orders to decriminalize the offence of “subversion.”
“ ..A declaration be and is hereby issued that, section 77(1) and 3(a),(b), (c), (d), (e), (f) and (g) of the penal code,cap 63 laws of kenya and continued enforcement of the said sections by the respondents against the interested party or any other member of the public is unconstitutional.”
In the petition the Director of Public Prosecution, the Inspector General of Police and the Attorney General were sued.
The petitioner said the section impaired freedom of expression by criminalizing and punishing “any person” ”who utters” ”any words” with a “subversive intention.”
They alleged that section 77 was enacted during the colonial period and was meant to stifle dissent against the colonial rulers and that the Kenyan law on subversion “has its roots in colonial-era law against sedition and similar activities.”
Furthermore, they said in a democratic nation like Kenya, criticism plays a vital role in holding leaders accountable and ensuring that their actions align with the interests of the nation. It allows citizens to express their concerns and helps leaders understand public sentiments.
Free speech, they alleged acts as a safeguard against potential abuses of power by politicians who might otherwise silence dissenting voices.
They said during the repressive years of the single-party regime, the state’s overreach was sustained by the complete suppression of freedom of expression, aiming to silence citizen dissent.
“The offence of “subversion” is unnecessary in a modern, democratic society. It is an antiquated means of suppressing and penalizing expression of political dissent, which amounts to a violation of the right to freedom of expression under the international law.”
On the part of the respondents they argued that Article 33(2) limits the right to freedom of expression and that the same does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred.
“The interested applicant’s tweet was meant to incite violence.”
They asked the court to dismiss the petition.
They submitted that section 77 of the Penal Code was enacted to cushion against activities that would interfere with the Kenyan security and that the tweet by Ayika was and is a security threat.
They said the section is constitutional and does not violate the petitioner’s freedom of speech.
“The tweets by the interested party are subject to limitations under sub article 2. It is our submission that the tweet was a propaganda for war and incitement to violence. It should not be treated as a criticism of the government.”
“Any allegations to the effect be dismissed.”
They added “subversion” is compatible with the sovereignty of the people of kenya because it shields the government and public officers from criticism.
They defined “subversion” as “an attempt to overthrow a government that has been legally established.”
However justice Muhochi said that definition of “subversive activities” under section 77(3) remains silent as to what subversion is.
“The purported breach of law or illegal act created by section 77 ultimately fails to define what “subversive intention” would constitute.” Ruled the court.
The court said that Kenya inherited a repressive system from colonial times, as seen in post-independence prosecutions like “mwakenya” and “pambana” and the atrocities at Nyayo house.
Muhochi said it was evident that section 77(1) and (3) of the penal code, a colonial relic, curtails freedom of expression through its vaguely defined offense of subversion.
“The 1st and 3rd respondents have not justified the necessity of the provision in section 77 of the penal code as pursuing a legitimate aim, and being strictly necessary in an open and democratic society I accordingly find that the said provision serves no legitimate aim and is not strictly necessary in an open and democratic state. In fact, there exists least restrictive measures in derogation to the freedom of expression.”
This is a win the fight for freedom of speech.
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