INTRODUCTION
On 18 th March 2024, in Katiba Institute & Others v DPP & Others – (Nakuru HCCHRPET E016 of 2023 the High Court at Nakuru (Justice S.M Muhochi) declared sections 77(1) and 3(a) (b) (c) (d) (e) (f) (g) of the Penal Code, Cap 63 and their enforcement unconstitutional.
This comes after a petition was filed on 6th August 2023 by Katiba Institute, Law Society of Kenya, International Community of Jurists, Bloggers Association of Kenya, Kenya Union of Journalists, Africa Center for Open Governance, Article 19: Global Campaign for Free Expression (Article 19 East Africa) and Kenya Human Rights Commission Tribeless Youth against the DPP, Inspector General of Police and the AG questioning the constitutional validity of section 77 of the Penal Code, Cap 63.
FACTS
On 21 st July 2023 Joshua Otieno Ayika, a lawyer, was arrested and arraigned in Makadara Chief Magistrates Court for Subversion Activities contrary to Section 77 (1) (a) of the Penal Code and Publication of false information contrary to Section 23 of the Computer Misuse and Cyber Crimes Act No. 5 of 2018 following his tweet on his X handle “@Ayika_joshua” that,
“I am not a prophet, neither am I a soothsayer but get it from me, in between Wednesday – Friday next week, 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 DPP and Attorney General contended 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 of the Republic of Kenya.
ISSUES
The issues for determination in this case were:
- Whether Section 77 of the Penal Code limits the freedom of expression under Article 33(1) of the Constitution of Kenya.
- The normative content and freedom of expression in a democracy.
- Whether the limitation of freedom of expression by Section 77 is a limitation by law.
- Whether the limitation of freedom of expression by Section 77 serve a legitimate aim.
- Whether the limitation of freedom of expression by Section 77 is necessary “in an open and democratic society”.
HELD
The Court held that:
- Freedom of expression and the rights to information are the cornerstone of any democratic state and that every person has the right to freedom of expression, which includes, freedom to seek, receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research.
- As a derogation, the right to freedom of expression does not extend to, propaganda for war incitement to violence hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is based on any ground of discrimination specified or contemplated in Article 27 (4) of the Constitution.
- The purported breach of law or illegal act created by Section 77 of the Penal code, cannot be discerned in the provision itself, the section encompasses any person who does, attempts to do, makes any preparation to do, conspires with any person to do, with a subversive intention, or utters any word(s) with a subversive intention and a secondary definition as contained in sub-section (3) on “Subversive” where in a tautologous language to “Wanjiku”, the meaning of “Subversive” takes in quite a variety of activities, and that its contents are therefore broad and wide that it is vague or indefinite.
- The last limb of Section 77(1) creates a derogation to the right to freedom of expression as the human conduct of uttering is ordinarily in human expression and that this derogation is blanket in form, subversive intention remains undefined leaving the prosecutor to conjure and that even with the definition of Subversion under section 77(3) it still remains a mystery what conduct would constitute an offence where one utters any words with a subversive intention.
- Section 77(1) and (3) of the penal code is a colonial legacy which limits freedom of expression through the vaguely worded offence of subversion.
- The provisions of the section 77 of the penal code are over broad 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.
- The DPP and Attorney General had not justified the necessity of the provisions in section 77 of the Penal code as pursuing a legitimate aim, and being strictly necessary in an open and democratic society, the said provision serves no legitimate aim and is not strictly necessary in an open and democratic state.
- Having found the provisions of Section 77 of the Penal code to be unconstitutional, it therefore follows that; no criminal prosecution may be sustained under the said provision.
Ochiel Dudley, Partner and Head of Public Law and Digital Rights at Bond Advocates LLP argued the Petitioners’ case. If you have issues with digital rights or freedom of expression you can contact us through ochieljd@bondadvocates.com
