Case Summary and Outcome

The High Court of Kenya declared the offence of subversive activities unconstitutional. The case arose after several non-governmental organisations, including the Katiba Institute, challenged the prosecution of a Kenyan lawyer, who had been charged with the offence in relation to posts on X (formerly Twitter) which allegedly could incite violence and threaten public order and security.  The Katiba Institute argued that the provision in the Penal Code was vague, overbroad, and inconsistent with the Constitution. The Court observed that freedom of expression is the “cornerstone of any democratic state” and that limitations on this right must be “reasonable and justifiable in an open and democratic society”. It found the provision vague, indefinite, and overbroad, lacking clarity on purpose and intent, and concluded that it was not “provided by law” and failed to meet constitutional standards, The Court noted the colonial origins of the provision.

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Facts

On July 16, 2022, Joshua Otieno Ayika, a Kenyan lawyer, posted on X (formerly Twitter), “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”.

On July 21, 2023, Ayika was arrested following the filing of a criminal complaint against him. He was charged on July 24, 2023, under Section 77 of the Penal Code of Kenya, Chapter 63.

Section 77(1) states that, “Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.” Under Section 77(3)(a), “subversive” means “supporting, propagating….or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice” and clauses 77(3)(b) to (g) include incitement to violence, intending to promote racial hatred or enmity, amongst others.

The chargesheet alleged that Ayika’s words “were prejudicial to the public order and security of Kenya, and which information was calculated to cause panic and chaos among citizens of the Republic of Kenya”. [para. 4] Ayika was also charged under Section 23 of the Computer Misuse and Cyber Crimes Act, 2018, which prohibits the publication of false information.

Subsequently, the Katiba Institute, a constitutional policy research and litigation institute, and various other organisations, including the Law Society of Kenya, International Commission of Jurists, Kenya, Blogger Association of Kenya, Kenya Union of Journalists, Africa Centre for Open Governance, Article 19 East Africa, Kenya Human Rights Commission, and Tribeless Youth challenged the constitutional validity of Section 77 and the continued enforcement of the provision against Ayika and other Kenyan citizens.

The Katiba Institute argued that the provision infringed Article 33 of the Kenyan Constitution, which protects the freedom of expression.

Article 33 states that “(1) Every person has the right to freedom of expression, which includes (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research. (2) The right to freedom of expression does not extend to (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27(4). (3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”

The case was filed against the Director of Public Prosecutions, the Inspector General of the National Police, and the Attorney General.

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Decision Overview

Judge Mohochi S.M. of the High Court of Kenya (Constitutional and Human Rights Division) delivered the judgment. The central issue before the Court was the constitutionality of Section 77 of the Penal Code of Kenya.

The Katiba Institute argued that Section 77 was inconsistent with Article 33 (right to freedom of expression) of the Constitution of Kenya, 2010, and that its continued enforcement against Ayika and other citizens is unconstitutional. It submitted that Section 77 fails the three core tests for constitutionality: “it is vague and cannot amount to a law; it does not serve any legitimate aim; and it is overbroad and not the least restrictive measure, hence is not necessary in an open and democratic society”. [para. 38] The Katiba Institute argued that Section 77 violates the principle of legality under Article 50(2)(n) of the Constitution since it is vague, imprecise, overbroad, and open to arbitrary enforcement by public officials and relied on General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, which defines the requirement of “provided by law” as necessitating sufficient precision. The institute submitted that Section 77 does not pursue a legitimate aim, especially as Article 33(2) of the Constitution already sets out permissible limitations on freedom of expression, such as propaganda for war, incitement to violence, and hate speech, and that Section 77 is not strictly necessary, fails the proportionality test, and is not the least restrictive measure. The Katiba Institute submitted that the onus was on the Kenyan government to demonstrate that Section 77 served a legitimate aim, is reasonable, and is strictly necessary. Even assuming its purpose was to protect reputation, the Katiba Institute argued that civil remedies under the Defamation Act provide an adequate alternative and the use of criminal sanctions imposes undue punishment where civil remedies suffice, while also producing a chilling effect on the petitioner and on the public’s right to seek and receive information under Article 35 of the Kenyan Constitution. [para. 56]

The Katiba Institute cited comparative jurisprudence from Zimbabwe, Canada, Switzerland, Uganda, and Nigeria, including Maseko v The Prime Minister of Swaziland and Mwenda v Attorney General, where similar provisions on sedition and related offences were struck down as unconstitutional and Boucher v R [1951] S.C.R. 265, where the Supreme Court of Canada, while adjudicating the validity of sedition related provisions, observed that democratically elected governments must remain accountable to the people. The institute also referred to Article 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples’ Rights, both of which safeguard the freedom to seek, receive, and impart information and the right to receive information. The Katiba Institute submitted that Section 77 does not meet the “legitimate aim” requirement under Article 19(3) of the ICCPR, or Articles 9 and 27(2) of the African Charter.

The Katiba Institute concluded that the offence of “subversion” under Section 77 is “unnecessary in a modern democratic society”, describing it as “an antiquated means of suppressing and penalizing expression of political dissent”, and therefore a violation of the right to freedom of expression under both the Constitution and international law [para. 72].

The Kenyan officials argued that Ayika had been charged with an offence recognized in law. They submitted that Section 77 does not violate the principle of legality under Article 50(2)(n) of the Constitution, since the offence was committed in 2023, long after its recognition in Kenyan law dating back to 1930. They maintained that Section 77 is “specific, clear and free from ambiguity,” as it clearly defines the activities that may be deemed to be committed with a “subversive intention”. [para. 78] The officials submitted that Section 77 is constitutional and compatible with Article 1 of the Constitution, which guarantees sovereignty to Kenyans, ensures their security, and provides a “cushion against activities that would interfere with the Kenyan security”. [para. 88] They emphasized that national security is paramount, and that Section 77 seeks to preserve it rather than punish citizens for criticizing the government. The officials characterized the petition as “frivolous, mischievous, and an abuse of the court process”. [para. 82] They maintained that freedom of expression is not absolute, and that Ayika’s post fell within the restrictions contemplated under Article 33(2) and the post amounted to “propaganda for war and incitement to violence” rather than legitimate criticism of the government. [para. 91] In addition, the officials relied on Article 24 of the Constitution, which provides that rights may be limited by law where such limitations are “reasonable and justifiable in an open and democratic society” and cited judicial precedents upholding restrictions on freedom of expression. [para. 92] The officials maintained that every law is presumed to be constitutional and that the burden rests on petitioners to prove otherwise which the Katiba Institute had failed to do.

The Court examined whether Sections 77(1) and 77(3) of the Penal Code were constitutional. It held that Section 77 amounted to a derogation from the right to freedom of expression, a right which it described as the “cornerstone of any democratic state” and so examined whether such derogation was a “reasonable and justifiable limitation” under Article 24 of the Constitution. [paras. 122-3] It considered the officials’ argument that Article 1 of the Constitution guarantees sovereignty and the protection of national security, and that the law restricting “subversion” was therefore compatible with the Constitution, but found that the law did not define “subversion” at all; while Section 77(3) attempted to define “subversive activities”, it remained silent on the meaning of “subversion” itself. [para. 125] The Court found that there was “no cogent evidence” to show that Ayka’s post amounted to propaganda for war or incitement to violence and so rejected the officials’ claim that Ayika’s tweet posed a “security threat”. [para. 127]

The Court warned that a liberal and broad interpretation of the provision could lead to abuse, especially given the maximum penalty of seven years’ imprisonment, describing Section 77 as vague, indefinite, and overbroad, with a lack of clarity on purpose and intent and concluding that it was not “provided by law”. [para. 137] The Court found that the terms and phrases used in the section, such as “prejudicial to public order”, “security of Kenya”, and “administration of justice”, were incapable of precise or objective legal definition. [para. 137]

The Court referred to Andare v Attorney General, where a provision was invalidated for vagueness and noted that that case referred to Sunday Times v United Kingdom, where the European Court of Human Rights held that laws must be formulated with “sufficient precision”. [para. 136] The Court found that the derogation to freedom of expression created in Section 77(1) predated the 2010 Constitution and therefore could not be regarded as a valid limitation under Article 24(2) of the 2010 Constitution. [para. 131]

The Court noted that Kenya had “inherited from the colonial state a repressive system” including provisions related to sedition and that Sections 70 to 76 (now repealed) under Chapter IX of the Penal Code, which related to unlawful assemblies, riots, and other offences against public tranquillity were used in Kenyatta v Regina to prosecute and convict “pre-independence African leaders”. [paras. 105-6] The Court concluded that Chapter IX functioned as a “regime instrument for self-preservation”. [para. 106]

The Court referred to Alai v. Attorney General, where the Court had declared the offence of “undermining authority of a public officer” as unconstitutional and held that, “the purpose [of section 132] was to suppress dissent among the natives with the object of protecting and sustaining the colonial government in power then … This cannot be the object of section 132 in the current constitutional dispensation when people enjoy a robust Bill of Rights that has opened the democratic space in the country”. [para. 120]

The Court found that the officials failed to demonstrate that Section 77 pursued a legitimate aim or was strictly necessary, particularly as less restrictive measures existed. It therefore held that there was no basis for criminal prosecution of Ayika under this provision.

Accordingly, the Court declared Sections 77(1) and 77(3)(a)–(g) of the Penal Code unconstitutional, and found that their continued enforcement against Ayika or any other Kenyan would be unconstitutional.

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