The Supreme Court building in Nairobi.
The Law Society of Kenya (LSK) wants a section of the Penal Code that has the offence of “creating disturbance in a manner likely to cause a breach of peace” declared unconstitutional.
The society says 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 that 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 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,” LSK says in the petition.
High Court judge Bahati Mwamuye said he was satisfied that the LSK had shown grave allegations of potential past, present and future possible infringements of the constitutional rights of Kenyans.
“While I am not satisfied that the petitioner/applicant has met the threshold for the grant of the conservatory orders sought with regard to 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 with respect to the interested party (Mr Morara Kebaso),” Justice Mwamuye said on Tuesday.
The judge stopped 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 that the section is inconsistent with, and violates the supreme law.
“The petitioner asserts that the section violates the right to freedom of expression by criminalising 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.
“The section permits too wide a margin of subjective interpretation, misinterpretation and abuse.”
The High Court directed the petition be heard on November 20.
