A High Court in Nakuru on Monday, March 18, squashed sections 77 (1) and 3 of the penal code, which allows the prosecution of people found culpable of the crime of subversion.
While terming the sections of the penal code unconstitutional, Justice Samuel Mohochi in his ruling stated that the crime was a colonial legacy and that it limited the freedom of expression.
The Penal Code section 77 (1) of the National Cohesion and Integration Act defines the crime of 'Subversion' as an incitement to violence and/or other disorder or crime, or counselling defiance of or disobedience to the law or lawful authority.
According to Justice Mohochi, there existed no clear definition of the word “subversion”, especially with the intended meaning of words such as 'prejudicial to public order', 'security of Kenya' and 'administration of justice.'
The court further noted the section of the penal code did not give clarity on the meanings of defiance of or disobedience to the law and lawful authority, unlawful society or even hatred or contempt against any public officer or any class of public officer.
The court's decision came after the national police service sued a man who posted on his verified Twitter account claiming that the army would take over the government in the next 90 days.
"I am not a prophet, neither am I a soothsayer but get it from me, in between Wednesday - Friday next week, we might have the army taking over from this 'Biblical Regime',” claimed the social media user.
“Prepare for an army to take over the government for the next 90 days then we shall have elections,” the tweet further read.
Following his controversial post, the man was arrested on July 21, 2023, and arraigned and charged on July 24, 2023, with "Subversive Activities" contrary to Section 77 (1) (a) of the Penal Code, Cap 63.
The man was also charged on the second count with “Publication of false information” contrary to section 23 of the Computer Misuse and Cyber Crimes Act, 2018.
According to the Directorate of Criminal Investigations (DCI) and the Inspector General of Police, Japhet Koome, the words were prejudicial to the public order and security of Kenya.
The DCI and Inspector General further claimed the sentiments of the accused were aimed at causing panic and chaos among citizens of the Republic of Kenya.
This move prompted petitioners including Katiba Institute, the Law Society of Kenya and the Kenya Human Rights Commission to challenge the constitutional validity of section 77 of the Penal Code in a petition filed to the court on August 8, 2023.
