The High Court of Kenya has delivered a landmark ruling by invalidating Section 77(1) and (3) of the Penal Code, which previously criminalized subversion and restricted freedom of expression.
This decision was made in a case involving Joshua Otieno Ayika, who faced charges for posting on social media about a potential government takeover by the army.
The post made on his X account stated, “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 the government for the next 90 days then we shall have elections,” the tweet further read.
The court found these sections of the Penal Code to be vague, overbroad, and unconstitutional as they limited the right to freedom of expression without clear definitions or legal justifications.
Justice Samwel Mohochi emphasized that the said provisions hindered free speech by criminalizing and punishing individuals for words deemed to have “subversive intent.”
What exactly is Subversion?
Subversion refers to the act of trying to weaken, destroy, or overthrow an established system, government, or institution.
It involves undermining the authority or integrity of a political system through secretive or deceptive means.
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Subversion can manifest in various forms, such as attempting to destabilize a government, incite rebellion, or challenge the status quo.
This term includes actions aimed at challenging the existing order or norms, often with the goal of bringing about change or disruption to the established system.
In essence, subversion involves secret efforts to undermine or overthrow.
Petitioner’s argument in the case
The petitioners in this case, including the Katiba Institute, the Law Society of Kenya, and Article 19, argued that the sections in question significantly restricted freedom of expression by penalizing anyone who published content with perceived subversive implications.
Justice Mohochi highlighted the lack of clarity in defining terms like “subversion,” “prejudicial to public order,” and “inciting disaffection against public officers,” stating that these terms lacked precise legal definitions.
The judge concluded that Section 77 of the Penal Code was overly broad, vague, and infringed upon the right to freedom of expression without lawful justification.
Ayika’s case showcased how these laws were used to stifle dissent and critique, leading to charges related to subversive activities and publishing false information under the Computer Misuse and Cyber Crimes Act.
The court’s ruling declared Section 77 (1) and (3) unconstitutional, marking a significant victory for free speech rights in Kenya.
Similar cases that challenged laws restricting the freedom of speech
This decision aligned with previous legal battles in Kenya that challenged laws restricting expression based on public morals or privacy concerns.
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Moreover, recent cases like Jacqueline Okuta & another v Attorney General & two others have also sought to address issues related to criminal defamation and its impact on freedom of speech.
