Kenya's High Court has struck down section 95(1)(b) of the Penal Code, which created the offense of inciting unrest that could lead to a breach of peace, ruling it unconstitutional. The decision stems from a petition by the Law Society of Kenya (LSK) and has quashed charges against activist Morara Kebaso.
Kenya's High Court has ruled that section 95(1)(b) of the Penal Code is unconstitutional because it is not clear and precise enough. The court has ordered police to immediately cease enforcing the provision. This offense was among minor criminal offenses, with a penalty of up to six months in jail.
The Law Society of Kenya (LSK) successfully challenged the section, arguing it was a colonial relic that violates the constitutional right to freedom of expression. The LSK stated that the provision allows excessive discretion and potential abuse in determining criminal penalties. “It is declared that section 95(1)(b) of the Penal Code is inconsistent with the Constitution and is therefore null and void,” the court said.
The ruling directly affects criminal charges filed against activist Morara Kebaso. Kebaso was arrested on October 8 last year and detained at Lang'ata Police Station before being charged with inciting unrest that could lead to a breach of peace. He was later released on bail pending appearance in Kibera Court.
The LSK argued that the offense of inciting or otherwise causing unrest that could disturb peace does not align with the sovereignty of the people, as it protects government officials from criticism and stifles public debate. The provision originated during emergencies in the 1960s to suppress opposition to the colonial government and was later used by the Kanu regime to silence critics. The LSK added that it breaches the principle of legality and rights protected in the Bill of Rights and Article 24 of the Constitution.
