Kenya: Win for freedom of expression as penal provision declared unconstitutional

ARTICLE 19 welcomes the news that Kenya’s penal law on ‘undermining authority of public officer’ has been declared unconstitutional. ARTICLE 19 and Robert Alai petitioned the High Court in Nairobi that the provisions were vague, uncertain and was an unjustifiable limitation to freedom of expression, as well as violating basic criminal law principles.

Robert Alai, a social media commentator and blogger, was arrested and charged under Section 132 of the Penal Code for publishing words on his Facebook page that criticised President Uhuru Kenyatta’s utterances against Raila Odinga, an opposition leader and CORD Principal.

Today, 26 April, Justice E.C Mwita declared that the provisions of Section 132 of the Penal Code were indeed incompatible with the Kenya Constitution on these grounds, declaring them ‘null and void’, in agreement with ARTICLE 19’s intervention.

“This judgement is a huge win for freedom of expression in Kenya, and an encouraging step towards respect for human rights. ARTICLE 19 is pleased to see that this substantial threat to freedom of expression has been recognised by the courts,” said Henry Maina, Director of ARTICLE 19 Eastern Africa.

Section 132 of the Penal Code, regarding ‘undermining authority of a public officer,’ has been increasingly used by state officials to target those criticising government.

Robert Alai, was arrested and charged under Section 132, which criminalises uttering or publishing words that are construed to undermine authority of any public officer. The terms of the law are extremely vague, including terms such as ‘undermining’, ‘excite defiance of or disobedience’ and ‘calculated to bring into contempt’. The judge today ruled that, as well as being overreaching and broad, this section is in contradiction of Article 33 of the Kenya Constitution, which guarantees the right to freedom of expression, including the freedom to seek, receive, or impart information or ideas.

ARTICLE 19 welcomes the news that this provision has been declared unconstitutional, and urges the Kenya government to revoke the provisions, fulfilling their obligations to meet international freedom of expression standards, as well as the standards set by the Kenya Constitution itself.  

The section provides as follows:

Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints, publishes any words, or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer or any class of public officers is guilty of an offence and is liable to imprisonment for a term not exceeding three years.