Petition E016 of 2023
SM Mohochi, J
March 18, 2024
Between
Katiba Institute……………………………………………………………………………………………..1st Petitioner
Law Society of Kenya……………………………………………………………………………………..2nd Petitioner
International Commission of Jurists……………………………………………………………………3rd Petitioner
Bloggers Association of Kenya…………………………………………………………………………4th Petitioner
Kenya Union of Journalists………………………………………………………………………………5th Petitioner
Africa Center For Open Governance……………………………………………………………………6th Petitioner
Article 19: Global Campaign for Free Expression (Article 19 East Africa)………………….7th Petitioner
Kenya Human Rights Commission……………………………………………………………………8th Petitioner
Tribeless Youth……………………………………………………………………………………………….9th Petitioner
and
Director of Public Prosecutions……………………………………………………………………….1st Respondent
Inspector General Of Police…………………………………………………………………………….2nd Respondent
Attorney General…………………………………………………………………………………………..3rd Respondent
and
Joshua Otieno Ayika……………………………………………………………………………………..Interested Party
Sections 77(1) and (3) of the Penal Code declared unconstitutional for limiting the right to freedom of expression and being broad and vague
The petition challenged the constitutional validity of section 77 of the Penal Code on the ground that it limited the freedom of expression through the vaguely worded offence of subversion. The court held that the provisions of the said section 77 were over broad and vague, and they limited the right to freedom of expression and there was lack of clarity as to the purpose and intent. The court finally declared sections 77(1) and (3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code as unconstitutional.
Brief facts
The interested party using his verified twitter/x handle account posted among other statements that people should prepare for an army to take over Government for 90 days then there would be elections. The interested party was subsequently arrested and charged with subversive activities contrary to section 77(1) (a) of the Penal Code. It was the 1st and 2nd respondents’ contention as particularized on the interested party’s charge-sheet, 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 of Kenya.
The petition challenged the constitutional validity of section 77 of the Penal Code, Cap 63. The petitioners claimed that the section limited the freedom of expression through the vaguely worded offence of subversion. The petitioners sought for among other orders a declaration that, section 77(1) and (3) of the Penal Code were unconstitutional.
Issues
- Whether section 77(1) and (3) of the Penal Code was unconstitutional for limiting the right to freedom of expression and being over broad and vague.
- Whether the derogation of the freedom of expression in section 77(1) of the Penal Code on subversive activities was a derogation envisioned under article 24(2) of the Constitution on the limitation of rights and fundamental freedoms.
- What were the factors to consider in constitutional interpretation?
- What were the factors to consider in determining the constitutionality of statutes?