Law limiting freedom of speech unconstitutional – court

The High Court in Nakuru has declared Section 77 (1) and (3) of the Penal Code unconstitutional.

The Section creates and punishes the offense of subversion stating that, "Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with subversive intention, is guilty of an offense and is liable to imprisonment for a term not exceeding seven years".

Sub-section 3 seeks to define the term "subversive" with statements including "supporting, propagating or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice", "inciting to violence or other disorder or crime, or counseling defiance of or disobedience to the law or lawful authority".

Delivering the judgment on Monday, Justice Samwel Muhochi said the section is over-broad and vague adding that it limits the right to freedom of expression without clarity as to the purpose and intent.

He stated that none of the terms used in the offense are defined or capable of precise or objective legal definition or understanding.

"The section is vague and over-broad firstly by not explicitly limiting the freedom of expression but adding the limitation on to other acts or conduct, there exists a confusing definition of “subversion”, especially about the meaning of "prejudicial to public order, security of Kenya and administration of justice", "in defiance of or disobedience to the law and lawful authority; unlawful society" or "hatred or contempt or excite disaffection against any public officer or any class of public officer"," he ruled.

"None of the terms used in the offense are defined or capable of precise or objective legal definition or understanding".

The judgment stemmed from a petition filed before the court by the Katiba Institute, Law Society of Kenya, ICJ, Bloggers Association, KUJ, and KHRC.

Other petitioners included the Africa Center for Open Governance, Article 19: Global Campaign Got Free Expression, and Tribeless Youth.

They argued that Section 77 of the Penal Code had no place in a modern democratic state like Kenya, saying that it is of a colonial legacy that limits freedom of expression through the vaguely worded offense of "subversion".

The petitioners told the court that "subversion" is an antiquated way of suppressing and penalising the expression of political dissent.

They said this amounted to a violation of the right to freedom of expression under international law.

The associations also argued that by criminalising the 'uttering' of any 'words' with a 'subversive intention', section 77 limits the freedom of expression on grounds alien to Article 33(2).

They pointed out that this leads to an inevitable conclusion in so far as the section is divorced from the article, it does not serve any legitimate aim.

Article 33(2) of the Constitution outlines the freedom of expression.

The respondents; the Director of Public Prosecutions, the Inspector General of Police, and the Attorney General however opposed the petition saying Section 77 is Constitutional as it does not violate their freedom of expression.

They submitted that Article 33 guarantees freedom of speech but the same is limited, arguing that the petition lacks merit and should be dismissed.

The petition arose after Joshua Otieno Ayika was charged with "Subversive Activities" contrary to Section 77(1)(a) of the Penal Code, at Makadara Chief Magistrate's Court.

Otieno was arraigned following a tweet on July 16, 2022, where he reportedly posted that "an army to take over the government for the next 90 days then we shall have elections".

Upon determination on the matter, Justice Muhochi found that Section 77 serves no legitimate aim and is not strictly necessary in an open and democratic state.

"There exist least restrictive measures in derogation to the Freedom of expression," he observed.

Consequently, the Judge ruled that "A Declaration is hereby issued that, section 77 (1) and (3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code, Cap 63 is unconstitutional."

Justice Muhochi added that the enforcement of the Section and its provision against any member of the public is unconstitutional.