Why colonial law revived during ODM protests has finally fallen

On July 10, 2022, lawyer Joshua Ayika posted on his X account a statement that did not please the government.

He claimed  there would be an military take over in 90 days time, paving way for an election. It landed him in court, at Makadara, charged with a colonial time law subversion.

 “I am not a prophet, neither am I a soothsayer but get it from me, in between Wednesday and 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,” the post at the heart of his then troubles with the State read in part.

Nevertheless, the charges were short-lived after High Court Judge Samwel Mohochi in his judgment declared Section 77 (1) and (3)(a), (b), (c), (d), (c), (e) (f), and (g) of the Penal Code to be against the freedom of expression and. Vague.

The sections outlawed by the court were borrowed from colonial masters and created an offence called subversion. The intent was to create ‘public order’. Kenya kept the Section intact until 2003, when it was amended.

At the same time, they also ‘protected the State security.’

Under the law, the then British government perceived that critics were disobeying authority.

Even after the 2010 Constitution came into effect, the draconian law remained unused in our statutes until the DPP decided to dust off the pages to pursue the ODM brigade, which had become a headache for the Kenya Kwanza administration.

Justice Mohochi was of the view that there is nowhere in the Constitution that subversion is mentioned. According to him, the intent was to limit the right to freedom of expression, with a vague law.

Public order

“ 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,”  said Justice Mohochi.

Some of the Orange Democratic Movement (ODM) leaders who were charged with subversion include Embakasi East Member of Parliament Babu Owino and Mathare MP Anthony Oluoch.

Section 77 provided that anyone found guilty of subversion should be jailed for a period not exceeding seven years.

The controversial law was being used by the Kenya Kwanza government to tame the ODM brigade was a colonial relic borrowed by successive governments from Kenya’s colonial master, Britain.It was introduced in 1960 in Kenya to deal with those who were opposed to the colonial government. 

At the same time, it was used during the Mwakenya trials, during the push for multi-party democracy.

The Law Society of Kenya, Katiba Institute, Kenya Union of Journalists, International Commission of Jurists, Bloggers Association of Kenya and Africa Centre for Open Governance filed the case.

Others included Article 19, the Kenya Human Rights Commission, and Tribeless Youth. They also listed Ayika, as an interested party.

Ayika, was accused of uttering words that are prejudicial to Kenya’s public order and security.

At the same time, he was accused of posting subversive words which were allegedly calculated to cause panic and chaos among Kenyans.

 In the case, the lobby groups’ lawyers Bosire Bonyi and Ochiel J Dudley argued that the section 77 is incompatible with the 2010 Constitution as it shields those in government from criticism.

At the same time, Bonyi and Ochiel asserted that the section also silences anyone who is interested in public affairs and a restriction to the truth.

According to the lawyers, Kenya belong to the citizens and cannot be silenced by the few they elect to govern on their behalf.

They also argue that the section is vague and too bold as it requires that anyone who plans or is involved in activities or utters words insinuating hate to the government should also be punished.

“Since none of the terms used in section 77 is attempted to be defined and as they are incapable of precise or objective legal definition and understanding the result is that innocent persons are roped in as well as those who are not enabling the authorities to be as arbitrary and as whimsical as they like in booking critics and dissenting voices under sections 77,” court papers read in part,” the court heard.

Further, the lobbies argued that the section leaves it to the magistrate to guess what action or utterance may be hateful or express displeasure against the powers that be. Court papers read that drafters of the Penal Code never defined what is authority and what is hate against the government.

They asserted that it is against the freedom of expression and association, as anyone who assembles to criticise the government is perceived to hate it.

The court heard that many of the sedition-type laws in use in Africa today are relics of colonialism that were initially introduced to buttress colonial rule and repress demands for national self-determination and independence.

In reply, the Inspector General of police and the Director of Public Prosecution argued that Section 33 of the Constitution limits freedom of expression.

 They claimed that propaganda to war, incitement to violence and hate speech are but among instances that the law kicks in.

The two also argued that section 77 was clear, adding that the High Court ought to allow the case against Ayika to proceed to its logical conclusion.

The court heard that Ayika’s tweets were aimed at propagating war and violence, hence causing insecurity.