On 26th April, 2017, Justice E.C Mwita on the Constitutional and Human Rights division of the High Court at Milimani declared Section 132 of the Penal Code unconstitutional. The section created the offense of ‘undermining authority of public.
Blogger Robert Alai and ARTICLE 19 petitioned the courts after Robert Alai was arrested and charged for commenting on Facebook about utterances President Uhuru had made about Raila Odinga (leader of CORD) and its presidential flagbearer in the 2013 general elections.
The specific words Robert published on social media were:-
“Insulting Raila is what Uhuru can do. He hasn’t realized the value of the Presidency. Adolescent President. This seat needs maturity.”
Elisha Zebedee Ongoya and Demas Kiprono, Counsel for Robert Alai and ARTICLE 19 respectively submitted to the court that:-
- Section 132 of the Penal Code ‘Undermining authority of public officer’, violated the constitution by unjustifiably limiting the fundamental freedom of expression as enshrined in Article 33 (1) and (2) of the Constitution;
- The words, ‘Undermining authority of public officer’ were not defined by the Act, were vague and overly broad thereby violating the principle of legality as enshrined in Article 50 (2) n;
- The impugned section violated Criminal Law principles by unjustifiably shifting the burden of proof from the state to the accused; and,
- That its applicability has a chilling effect on the Kenyans’ freedom of expression.
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.
The judge found that, as well as being overreaching and broad, the section was 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. Laws may not grant officials largely unfettered discretion to use their power as they wish, nor may laws be so vaguely worded as to lead reasonable people to differ fundamentally over their extension.
The court also found that since the impugned section attempted to shift burden of proof from the state to the accused, it was in contravention of Article 25 (c) which provides that the right to fair trial cannot be limited under any circumstances.
The Judge noted that the provision was too retrogressive for a modern open and democratic society such as Kenya.
By no means can a law purport to limit criticism of the state or public officers, including the President for that matter.
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