Penal code on incitement to violence illegal, court rules

Former Machakos Senator Johnstone Muthama (centre), his lawyer John Khaminwa and political activist Japhet Muriira outside Milimani Law Courts on January 29, 2020. PHOTO | PAUL WAWERU | NATION MEDIA GROUP

What you need to know:

  • The bench held that the said section of the penal code infringes and transgresses on presumption of innocence of an accused person in a criminal trial.
  • Judges say section 96(a) of the penal code shifts evidential burden of proof to an accused person. 

The High Court has declared as unconstitutional a provision of Kenya penal code on incitement to violence and disobedience of the law.

The court on Wednesday stopped prosecution of former Machakos Senator Johnstone Muthama on hate speech-related charges.


A three-judge bench comprising Justices Jessie Lessit, Luka Kimaru and John Mativo said section 96(a) of the penal code is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution. 

While ruling on a petition filed by the former senator challenging his prosecution over incitement to violence, the judges said it is always the prosecution’s duty to establish its case in a criminal trial.

The bench held that the said section of the penal code infringes and transgresses on presumption of innocence of an accused person in a criminal trial.


Section 96(a) of the penal code says the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community.

But the three judges found that the said section of the law offends the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”

In the ruling, the judges said the inevitable effect of the disputed section of the penal code is that the accused person is under compulsion to adduce evidence of reasonable cause to avoid conviction even if the prosecution leads no evidence to establish a case.

“If after all evidence the court is uncertain as to where the truth lies, the constitutional presumption of innocence is replaced by a statutory presumption of guilt. This is an impermissible position where a statutory provision supplants a constitutional edict,” stated the judges.


According to the bench, the disputed section also infringes on a cluster of rights associated with a fair trial.

These are the general right to a fair trial, the privilege against self-incrimination, the right not to be a compellable witness against oneself and the right to silence guaranteed in Article 49 (1) (a) (ii) and Article 50 (2) of the Constitution.

Following the findings, the court directed the Attorney-General to prepare a Bill to be presented to Parliament with a view to remedying the deficiency in the said section of the penal code.

They directed the Attorney-General to do so within a period of one year.

The bench observed that it should be amended to conform to the Constitution a stipulated in section 7 of the sixth schedule of the Constitution.

In the petition, Mr Muthama, through lawyer John Khaminwa, stated that on September 23, 2015 at a public rally at Uhuru Park, Nairobi, he made utterances in opposition of government policies.  

Mr Khaminwa said the utterances, though were understood to be incitement to violence by State security agencies, were within his rights as a senator and as a citizen and were merely an expression of his views.

According to the lawyer, the politician had just criticised government over rising cases of insecurity, failure by government to respect public institutions, failure to stem corruption, disobedience of court orders and failure to address issues raised by teachers’ unions.

He was also critical on the Jubilee government for the wide gap between the rich and the poor, failing to create employment and lack of action to improve the economy.


After his utterances, the then Cabinet Secretary for Interior, Joseph Nkaissery, while on a tour in the United States released an official statement on September 24, 2015 defending the government.

While describing himself as a ''renowned local and international businessperson with business interests nationally and internationally'', Mr Muthama said the statement meant that he was a security risk to the country.

The court heard that former Dagoretti South MP Dennis Waweru and Nairobi Senator Johnson Sakaja also wrote to the National Cohesion and Integration Commission (NCIC) and the DPP complaining about his statements. In fact Mr Sakaja demanded Mr Muthama’s immediate arrest.

A multi-agency team comprising police officers, Directorate of Criminal Investigations officers and National Cohesion and Integration Commission was established to speedily investigate Mr Muthama’s statement.

The Director of Public Prosecutions later ordered the NCIC to investigate and have Mr Muthama and political activist Japhet Muriira Muroko tried on the offence of incitement to violence contrary to section 96(a) of the penal code.


According to Mr Muthama, the prosecution was selective, punitive, discriminatory and targeted him on account of his political affiliation and persuasion.

“Interior CS reacted to the petitioner’s criticism of the government. And it was meant to intimidate and harass him. Creation of a multi-agency team to investigate him offends section 26(2) of the National Cohesion and Integration Act which requires the commission to act independently in the discharge of its functions,” said lawyer Khaminwa.

In his submissions, the lawyer said that if the words uttered by Mr Muthama would be given their natural meaning, it would be found that they do not meet the threshold of incitement to violence  as contemplated under section 96(a) of the penal code.


He added that Mr Muthama’s rights as an arrested person were offended as he was required to record a statement in such a case when such a request offends his right to remain silent.

“The preamble of the Constitution of Kenya demands that all people of Kenya work towards a government and a society based on essential values of human rights, equality, freedom, democracy, social justice and the rule of law,” said the lawyer.

In their ruling, the judges found that the DPP’s decision to institute court proceedings is a high calling that must be exercised in a manner that leaves no doubt that the decision was made independently.

“Where the decision is surrounded by doubt or even mere reasonable suspicion, such a decision cannot be allowed to stand. The decision must be seen to have been arrived at by the DPP independently,” ruled the judges.

They issued an order prohibiting the DPP from further prosecuting Mr Muthama in relation to the utterances he made at the Uhuru Park rally.