The Kenyan High Court in a recent ruling, has struck down section 77(1) and 3 of the penal code, effectively abolishing the crime of subversion.
Justice Samwel Mohochi declared that these sections of the penal code, inherited from the colonial era, unjustly curtailed freedom of expression by ambiguously defining the offense of subversion.
Petitioners, including the Katiba Institute, Law Society of Kenya, and Article 19, contended that these provisions unduly restricted freedom of expression by criminalizing individuals who expressed dissenting views with a perceived “subversive intention.”
Justice Mohochi criticized the vague and overbroad nature of the law, noting that it failed to clearly define subversion and instead imposed restrictions on various forms of expression.
He highlighted the confusion surrounding terms such as “prejudicial to public order,” “security of Kenya,” “administration of justice,” and “hatred or contempt” towards public officials, arguing that these terms lacked precise legal definitions.
The judge concluded that section 77 of the penal code infringed upon the right to freedom of expression and lacked legal clarity and justification.
In a specific case brought before the court, Mr. Joshua Otieno Ayika faced charges of subversive activities for a social media post suggesting a military takeover. He was also charged with spreading false information under the Computer Misuse and Cyber Crimes Act, 2018.
Civil society organizations contested the constitutional validity of section 77, asserting that it had no place in a modern democratic society like Kenya and served as a relic of colonial oppression.
Justice Mohochi issued a declaration declaring section 77(1) and 3 unconstitutional and prohibited its enforcement against any member of the public.
