Court quashes crime of subversion

The High Court has quashed section 77 (1) and 3 of the penal code, which creates the crime of subversion.

Justice Samwel Mohochi said 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 petitioners including Katiba Institute, Law Society of Kenya and Article 19 argued that said sections limits the freedom of expression by criminalising and punishing any person who publishes any words with a “subversive intention”.

Justice Mohochi said 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.

The judge added that there exists confusing definition of “subversion” especially about the meaning of words such as “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”.

Judge Mohochi said none of the terms used in the offence are defined or capable of precise or objective legal definition or understanding.

“This Court thus finds that, the provisions of section 77 of the penal code are overbroad 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,” said the judge.

In the case, Mr Joshua Otieno Ayika was charged before a Makadara court with the offence of subversive activities, after he posted on his X handle (formerly Twitter) on July 16, 2022 saying the army will be taking over the government in the next 90 days.

Mr Ayika was also charged with a second count of publication of 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 which information was calculated to cause panic and chaos among citizens.

The civil society organisations moved to court questioning the constitutional validity of section 77 of the penal code.

They submitted that the section has no place in a modern democratic state like Kenya, it is a colonial legacy which limits freedom of expression through the vaguely worded offence of subversion.

“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, “said the judge adding that its enforcement against any member of the public is illegal.

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