Government sued over colonial law used to prosecute Azimio leaders

Law Society of Kenya President, Eric Theuri during a press briefing in Nairobi on April 20, 2023. [Denis Kibuchi, Standard]

A fresh battle over Azimio protests has landed in court, with the government being sued for a colonial law it used against those perceived to be the organizers.

The case seen by The Standard challenges section 77 of the Penal Code, which makes it a crime to either plan or be involved in disobeying authority.

Some of the Azimio leaders who were charged with subversion include Embakasi East MP Babu Owino and his Mathare counterpart Anthony Oluoch.

The colonial section provides that anyone found guilty of subversion should be jailed for a period not exceeding seven years.

The controversial law being used by the Kenya Kwanza government to tame Azimio is 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. It was also used during the Mwakenya trials.

Law Society of Kenya, Katiba Institute, Kenya Union of Journalists, International Commission of Jurists, Bloggers Association of Kenya and Africa Center for Open Governance have filed the case challenging the retrogressive law.

Others are Article 19, Kenya Human Rights Commission and Tribeless Youth. Lawyer Joshua Otieno Ayika has been enlisted as an interested party. He was charged before Makadara Law Court over his tweets.

He was accused of uttering words that are prejudicial to Kenya's public order and security.

Ayika was further 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 argue that Section 77 is incompatible with the 2010 Constitution as it shields those in government from criticism.

Bonyi and Ochiel assert that the section also silences anyone who is interested in public affairs.

According to the lawyers, Kenya belong to the citizens and cannot be silenced by few leaders 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," reads the court papers.

According to the lobbies, the section leaves it to the magistrate or judge to guess what action or utterance may be hateful or expressing displeasure against the powers that be.

They maintain that the colonial law is against the freedom of expression and association as anyone who assembles to criticize the government is perceived to have hate against it.

"Since the section fails to strike a proper balance between the freedoms guaranteed in the Bill of Rights and the limitation clause in Article 24, but excessively invades the rights sought to be protected by the petitioner, the sections are neither reasonable nor justifiable in an open and democratic society with proper respect for the rights of the individual," argued the lawyers.