Morara Kebaso case: LSK trains guns on the penal code

The Law Society of Kenya (LSK) wants a section of the Penal Code that creates the offence of ‘creating a disturbance in a manner likely to cause a breach of the peace’ declared unconstitutional.

The lawyers’ body argues that section 95(1)(b) of the Penal Code, is a “colonial relic” that infringes on the right to Freedom of Expression as provided by the Constitution, and the offence is too broad and vague.

“The petitioner avers that the stated object of the offence of ‘brawling or in any other manner create a disturbance in such a manner as is likely to cause a breach of the peace’ is incompatible with the sovereignty of the people of Kenya because it shields government and public officials from criticism, restricts discussion of public affairs, and denies the defence of truth,” the LSK says in the petition.

High Court judge Bahati Mwamuye on Tuesday said he was satisfied that the LSK had shown grave allegations of potential past, present, and future grave infringements of the constitutional rights.

“While I am not satisfied that the petitioner/applicant has met the threshold for the grant of the conservatory orders sought concerning all persons at the ex parte stage, I am satisfied that the petitioner/applicant has met the legal threshold for the grant of ex parte conservatory orders on the subject matter concerning the interested party (Morara Kebaso),” Judge Mwamuye said.

The judge blocked the police and Director of Public Prosecutions Renson Ingonga from arresting and charging Mr Kebaso, pending the determination of the petition.

LSK Chief Executive Officer Florence Muturi said in an affidavit in support of the petition that the said section is inconsistent with and violates the supreme law.

“The petitioner asserts that the section violates the right to freedom of expression by criminalising the uttering of certain words on grounds that have no proximate relation to the limitations permitted by the Constitution on the freedom of expression under Article 33(2) - propaganda for war, incitement to violence, hate speech, or advocacy of hatred under Article 33(2)(d),” she said.

Ms Muturi said the section offends the principle of legality espoused in Article 50(2)(n) requiring precision in criminal law, especially one that limits fundamental rights and freedoms, to be clear enough to be understood and precise enough to cover only the activities rationally connected to the law’s purpose.

“Thus the section permits too wide a margin of subjective interpretation, misinterpretation, and abuse in determining criminal penalties,” she said.

The judge directed the case to be heard on November 20.

Mr Kebaso was arrested on October 8, and booked at Lang’ata Police Station and was later informed that he would be charged with creating disturbance in a manner likely to cause a breach of peace.

The activist was later released on a free bond waiting to be arraigned in Kibera for plea taking.