In a significant ruling for civil liberties, the High Court of Kenya has declared Section 95 (1) (b) of the Penal Code unconstitutional. The judgment, delivered by Justice Bahati Mwamuye marks a pivotal moment in the protection of political dissent and freedom of expression under the 2010 Constitution.
The ruling follows a consolidated petition (Milimani HCCHRPET No. E573 of 2024) brought forward by the Law Society of Kenya (LSK) against the Director of Public Prosecutions (DPP), the Inspector General of Police (IGP), and the Attorney General.
The legal challenge was sparked by the arrest of activist Morara David Kebaso on October 8, 2024. State authorities intended to charge Kebaso with “creating a disturbance in a manner likely to cause a breach of peace.”
The specific “offence” occurred during a public participation forum at the Bomas of Kenya regarding the impeachment of then-Deputy President Rigathi Gachagua. Prosecutors alleged that Kebaso’s use of the phrase “kufa dereva kufa makanga” (if the driver dies, the conductor dies) caused a public reaction that constituted a criminal disturbance.
Section 95 (1) (b) of the Penal Code previously stated that any person who: “…brawls or in any other manner creates a disturbance in such a manner as is likely to cause a breach of the peace, is guilty of a misdemeanor, and is liable to imprisonment for six months.”
Legal experts and the LSK argued that the phrasing “in any other manner” was dangerously vague, giving the state broad powers to criminalize legitimate speech.
Representing the LSK, Advocate Bosire Bonyi argued that the provision was being weaponized to suppress those critical of the government. The court agreed, finding that the section contravened several articles of the Constitution:
- Article 33: Freedom of Expression.
- Article 24: Limitation of Rights (ruling the law was not a “reasonable and justifiable” limitation in a democratic society).
- Article 50(2)(m): Right to a fair trial.
Justice Mwamuye concluded that the section did not serve a legitimate aim and was primarily used to penalize political dissent.
The court’s declaration that the enforcement of this section is unconstitutional means that neither Kebaso nor any other Kenyan citizen can be charged under this specific provision moving forward.