Justice Enoch Chacha Mwita of the Constitutional and Human Rights division has declared section 132 of the Penal Code as unconstitutional. The section made it a crime to ‘undermine the authority of a public office’.
The case, Petition 174 of 2016, was filed by Robert Alai after he was charged under the offense for criticizing the Head of State, President Uhuru Kenyatta.
The section reads
Any person who, without lawful excuse, the burden of proof where of shall lie upon him, utters, prints, publishes any words, or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer or any class of public officers is guilty of an offence and is liable to imprisonment for a term not exceeding three years.
The court found that the provision was vague and thus an unjustifiable limitation to freedom of expression.
The judge said that the provision was too retrogressive for an open and democratic society such as Kenya.
In particular, the court found that Section 132 of the penal code was inconsistent with Article 50, 33 and 25 (c) of the constitution. The sections deal with limitations of freedoms and freedom of expression.