The High Court has declared as unconstitutional a section of the law that stipulates undermining authority of a public officer as an offence.
Justice Enoch Chacha Mwita ruled that Section 132 of the criminal law is invalid and that it undermines the provisions of the Constitution that promotes advancement of social justice, enforcement of fundamental freedom and human rights.
He declared that the continued enforcement of the impugned law was unconstitutional as well as a violation to the fundamental right to the freedom of expression.
“The people of Kenya gave themselves a Constitution with a robust and progressive Bill of Rights, a provision such as Section 132 of the penal code is too retrogressive to fit in a modern, open and democratic society. It is too wide in scope, punitive in intent and suppressive in effect,” said Justice Mwita.
The verdict was issued in a case in which blogger Robert Alai had moved to the High Court to challenge the constitutionality of the offence of undermining the authority of a public officer, which he had been charged with before a magistrates court.
Mr Alai found himself on the wrong side of the law following his post on social media in 2014 using words that were considered as an insult to President Uhuru Kenyatta.
He had posted on his Twitter page that ‘insulting Raila is what Uhuru can do. He hasn’t realised the value of the Presidency. Adolescent President. This seat needs maturity.’
Mr Alai sued the Attorney General and the Director of Public Prosecution while claiming that his rights had been violated when charges against him were preferred.
According to the judge, his case has put to the limelight the issue of criticising a public officer as having been wrongly considered as an offence.
“Criminalising criticism is curtailment of the right to speak about public officers and derogates ones right to hold an opinion, the impugned provision is in my view a derogation of the Constitution,” he ruled.
The judge also said the impugned law limits the right to a fair trial hence any alleged discomfort can be deemed as less restrictive and a curtailment of fundamental rights.
The judge consequently set aside charges against the blogger saying that continued enforcement of that law against him was unconstitutional which therefore means his case will be dropped.