High Court strikes down law that limits freedom of speech
Justice Samwel Mohochi says Section 77 (1) and (3) of the Penal Code is a colonial legacy which limits freedom of expression.
The High Court has struck down Section 77(1) and (3) of the Penal Code, which creates the offence of subversion.
Justice Samwel Mohochi said Section 77(1) and (3) of the Penal Code is a colonial legacy that restricts freedom of expression through the vaguely worded offence of subversion.
The petitioners, including the Katiba Institute, the Law Society of Kenya and Article 19, argued that the sections restricted freedom of expression by criminalising and punishing any person who publishes words with "subversive intent".
Justice Mohochi said the section was vague and overbroad, firstly because it did not explicitly limit freedom of expression, but added the limitation to other acts or conduct.
The judge added that there was a confusing definition of "subversion", particularly as to the meaning of words such as "prejudicial to public order, the security of Kenya and the administration of justice", "in defiance of or disobedience to the law and lawful authority; unlawful society" or "hatred or contempt or inciting disaffection against any public officer or class of public officers".
Justice Mohochi said none of the terms used in the offence were defined or capable of precise or objective legal definition or understanding.
"This court therefore finds that the provisions of section 77 of the Penal Code are overbroad and vague and that they restrict the right to freedom of expression and that there is lack of clarity as to the purpose and intent and that the restriction in section 77 is not provided for by law," the judge said.
In this case, Mr Joshua Otieno Ayika was charged before the Makadara Magistrate's Court with the offence of subversive activities after he posted on his X handle (formerly Twitter) on 16 July 2022 that the army would take over the government in the next 90 days.
Mr Ayika was also charged with a second count of publishing false information contrary to section 23 of the Computer Misuse and Cyber Crimes Act, 2018.
The charge sheet stated that the words were prejudicial to the public order and security of Kenya and that the information was calculated to cause panic and chaos among citizens.
The CSOs went to court challenging the constitutional validity of Section 77 of the Penal Code.
They argued that the section had no place in a modern democratic state like Kenya and was a colonial legacy that restricted freedom of expression through the vaguely worded offence of subversion.
"It is hereby declared that Section 77 (1) and (3) (a), (b), (c), (d), (e), (f) and (g) of the Penal Code, Cap 63 is unconstitutional," the judge said, adding that its enforcement against any member of the public is illegal.
