High Court nullifies ‘creating disturbance’ law
The High Court has declared Section 95(1)(b) of the Penal Code unconstitutional, effectively abolishing the offence of “creating disturbance in a manner likely to cause a breach of peace.”
In a landmark judgment, Justice Bahati Mwamuye ruled that the provision is inconsistent with the Constitution, describing it as overly broad, vague and incapable of precise interpretation. The court held that the law failed to meet constitutional standards, particularly in safeguarding the right to freedom of expression.
“A declaration be and is hereby issued that Section 95(1)(b) of the Penal Code is inconsistent with the Constitution and is therefore unconstitutional, null and void,” the judge ruled.
The decision immediately bars law enforcement agencies from continuing to enforce the provision.
Previously classified as a misdemeanor, the offence carried a penalty of up to six months’ imprisonment and had frequently been used to arrest and charge individuals in cases involving protests or public criticism of authorities.
The petition challenging the law was filed by the Law Society of Kenya (LSK), which argued that the provision was a colonial-era relic that had no place in a constitutional democracy.
LSK maintained that its vague wording allowed for arbitrary arrests and infringed on fundamental freedoms guaranteed under the Constitution.
In the same ruling, the court quashed criminal proceedings against activist Morara Kebaso. Kebaso had been arrested on October 8 last year and detained at Lang’ata Police Station after monitoring government projects.
He was informed he would be charged under the now-invalidated provision for allegedly creating a disturbance likely to cause a breach of peace.
