The High Court of Kenya at Nakuru has outlawed the offence of subversion. This follows a judgment delivered on 18 March 2024 by Judge Mohochi S. M.

Recalling the former repressive regimes, the court found that the offence is a colonial relic inconsistent with the Constitution of Kenya. Also, that the offence is void for vagueness and unjustifiably limits the right to freedom of expression.

Katiba Institute was the first petitioner in the case Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023.

About the case

On 21 July 2023, Joshua Otieno Ayika, the Interested Party was arrested, arraigned and charged on 24th July 2023, with “Subversive Activities” contrary to Section 77 (1) (a) of the Penal Code, Cap 63 following a tweet posted on 16th July 2022 using his handle @Ayika_joshua.

The tweet read:

“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”

Joshua was also charged on the second count with“Publication of false information” contrary to section 23 of the Computer Misuse and Cyber Crimes Act, 2018.

Feeling aggrieved by the eminent threat of this criminal provision to bloggers, journalists and online activists, Katiba Institute and other Petitioners challenged the constitutional validity of section 77 of the Penal Code by this petition dated 6 August 2023 and filed on 8 August 2023.

Judgment

The Court thus found that, the provisions of the section 77 of the penal code were 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 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 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”. None of the terms used in the offence are defined or capable of precise or objective legal definition or understanding.”

The Court, therefore, declared section 77 (1) and (3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code, Cap 63 unconstitutional; and that, the continued enforcement of section 77 (1) and (3)(a), (b), (c), (d), (c), (e) (f), and (g) of the Penal Code by the Respondents against the Interested party or any member of the public is unconstitutional.

Here is the link to the full JUDGMENT: https://katibainstitute.org/wp-content/uploads/2024/03/Judgment-Katiba-Institute-8-Ors-Vs-DPP-2-Ors-HCCHRPET-No-E016-of-2023-1.pdf