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Big win for media, democracy as repeal of subversion law expands free speech

The respected human rights organisation Amnesty International declared four Kenyan journalists “Prisoners of Conscience” and launched a global campaign for their freedom.

The Standard managing editor Kamau Kanyanga, deputy chief sub John Nyaosi, Nakuru bureau chief Ngumo wa Kuria and writer Peter Makori had been charged with subversion. The year was 1994 in the Dark Era of President Daniel arap Moi. Hizo ni zama za kale/zama za Pepe Kalle.

The Nyayo kakistocracy did not want Kenyans and the world to know about the politically instigated ethnic violence unfolding in the Rift Valley and parts of Western.

“Amnesty International is increasingly concerned at the use of the legal process by the government to apparently intimidate and harass the independent press in Kenya. Several other journalists have been arrested in recent weeks for attempting to investigate and report incidents of political violence,” the organisation said.

It was a campaign of state intimidation to silence the media and dissident voices in the early years of the return of multiparty democracy to Kenya.

But Moi didn’t invent this method of using oppressive laws to silence critics. He inherited it through his Nyayo “philosophy” of following in the footsteps of his predecessor.

In 1977, for example, the regime of Jomo Kenyatta had detained without trial celebrated writer Ngugi wa Thiong’o for subversion after he wrote a Gikuyu language play, Ngaahika Ndeenda (I Will Marry When I Want) that was performed by peasants in Kamiriithu, Ilmorog (that’s the original name of Limuru).

Later in 1982, University of Nairobi lecturers Willy Mutunga, Edward Oyugi, Alamin Mazrui, Kamoji Wachira, Katama Mkangi and Maina wa Kinyatti were all arrested for subversion for allegedly authoring leaflets that exposed the corruption and other failures of the Moi dictatorship.

Strangely, the subversion law did not die with the end of the Moi/Kanu “error” in December 2002. Nor was the draconian legislation tossed into the dustbin of history upon promulgation of the long fought for and widely acclaimed new Constitution of Kenya on August 27, 2010. The law stuck in the statute books.

Last July during Azimio’s maandamano, Embakasi East MP Babu Owino and six others were charged with “conspiracy to commit subversive activities contrary to Section 77 (1) of the Penal Code.”

The law says, “Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.”

It then sets out in Subsection 3 a broad range of possible criminal actions falling under the definition of “subversive intention”.

On Monday, March 18, almost exactly 30 years after the four Standard scribes were charged with subversion, Nakuru High Court Judge Samwel Muhochi entered the annals of Kenyan history by striking down Section 77 of the Penal Code as unconstitutional.

Justice Muhochi found the law to be “vague and overbroad”, and not only limiting freedom of expression but also criminalising other lawful conduct. “None of the terms used in the offence is defined or capable of precise or objective legal definition or understanding,” he said.

History amply demonstrates that vague laws are always a devastating weapon in hands of rulers, who would not hesitate to misuse them to crush their opponents and to throw a pall of fear and silence over the entire population.

The petition against Section 77 was filed by Katiba Institute, the Law Society of Kenya, Bloggers Association of Kenya, Kenya Human Rights Commission, Africa Centre for Open Governance and Article 19, among other civil society groups.

They went to court after Joshua Ayika was charged with “subversive activities” in Nairobi. He had allegedly posted on X on July 16, 2022, that “an army to take over the government for the next 90 days then we shall have elections.”

The repeal of the subversion law is a major milestone in Kenya’s journey to democratic maturity. Other backward laws remain in the statute books.

For example, in this day and age, you can be charged under Section 67 of the Penal Code with defamation of a “foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb peace and friendship between Kenya and the country”.

The media and citizens must remain vigilant to review, identify and fight laws that are incompatible with democracy as envisioned in the Constitution of Kenya 2010. A luta continua, vitória é certa!

See you next week!

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