LEADER

EDITORIAL: Repeal of colonial laws welcome

In Summary

• Laws with colonialist language and vague restrictions are unconstitutional.

• Section 182 of the Penal Code is unconstitutional to the extent that it criminalises idleness and polices human behaviour.

Colonial laws
Colonial laws

The Penal Code (Amendment) Bill 2021 is a good sign that lawmaking in Kenya is slowly catching up with a society that is more liberal and increasingly aware of basic human rights.

Laws with colonialist language and vague restrictions are unconstitutional. Section 182 of the Penal Code is unconstitutional to the extent that it criminalises idleness and polices human behaviour.

It gives the police full discretion to determine what and who is immoral, indecent or disorderly. For instance, who is a "common prostitute" and what would he or she do that could amount to disorderly or indecent behavior?

Why is the common prostitute considered a criminal for his or her behaviour as opposed to the one who the police may not see as "common"?

The law is not clear and, therefore, any Kenyan is at risk of being considered a common prostitute, depending on the moral compass of the officer who  makes the arrest. 

Section 182 also provides that every Kenyan who publicly conducts himself in a manner that is likely (not certain) to cause a breach of peace is idle and disorderly. If you beg on the streets, you are facing a fine of Sh100,000, which is a huge irony all things considered.

The new bill being proposed by Nakuru Town East MP David Gikaria should be fully backed and Section 182 repealed, not just for the safety of sex workers and street families but for all Kenyans particularly as we go into an election year where idleness could be misconstrued.