The Bloggers Association of Kenya (BAKE) has moved to court to question the validity of sections 77 and 94 of the penal code, affirming that they undermine the Constitution. The association feels that these sections pose a threat to free speech and media freedoms because they could be used to charge bloggers, journalists and online activists.
In the case against the Director of Public Prosecutions and the Attorney-General through lawyer Hellen Ngessa, the association wants the court to declare them unconstitutional. Article 19 and Embakasi East MP Paul Ongili alias Babu Owino are listed as interested parties.
Babu was charged in December 2017 with subversion and offensive conduct conducive to breach of peace. He allegedly said this words, “kama Gadaffi alitolewa na wananchi, kama Gbagbo alitolewa na wananchi, kama Yahya Jammeh alitolewa na wananchi, wewe ni nani? Wewe ni mtoto wa mbwa”. This words were calculated to excite disaffection against the president, disobedience of lawful authority and/or were intended to provoke a breach of the peace
Section 77 (1) (F) prescribes a mandatory imprisonment of up to seven years for “any words with a subversive intention, prejudicial to public order, the security of Kenya or administration of justice.” Section 94 (1) criminalizes free expression in a public place or at a public gathering.
BAKE hopes that the courts that have in the recent years been progressive in striking out various sections of the penal code, would also do the same. Criminal defamation was last year struck out by the High Court while other vague provisions that were not abiding by Constitutional limitations to freedom of expression were also struck out.
Sections 77 and 94 of the Penal Code fail to strike a proper balance between the freedoms guaranteed in the Bill of Rights and the limitation clause in Article 24 of the Constitution. The sections are neither open nor justifiable in an open and democratic society with proper respect for the rights of the individual.
Our affidavit is available for download HERE.