Court quashes breach of peace law, vindicates activist Kebaso

The High Court has declared the use of the ‘disturbance charge’ unconstitutional. 

Justice Bahati Mwamuye, presiding over a petition brought by the Law Society of Kenya, declared Section 95(1)(b) of the Penal Code unconstitutional.

In a case involving the prosecution of political activist Morara Kebaso over the charge, Mwamuye said the state’s use of a colonial-era law to silence dissent violated his right to freedom of expression.

The ruling effectively ends the long-running prosecution of Kebaso, whose arrest in late 2024, became the catalyst for this constitutional challenge.

​The case originated from a volatile public participation forum held on October 4, 2024, at the Bomas of Kenya. 

Kebaso had attended the session to provide views on the impeachment of then-Deputy President Rigathi Gachagua. 

He was arrested on October 8, 2024, and booked at Lang’ata police station for allegedly uttering the phrase "kufa dereva, kufa makanga" (driver dies, tout dies). 

The state argued these words created a disturbance likely to cause a breach of peace. 

However, critics decried the move as an attempt to weaponise a vague law against a prominent critic.

LSK, acting as the petitioner, argued the offence was a "colonial relic" designed in the 1960s to protect the British Crown and later repurposed by the Kanu regime to suppress internal opposition. 

They contended that the law allowed authorities to act with "whimsical" and "arbitrary" discretion. 

Justice Mwamuye’s judgment echoed these concerns, noting the provision failed the "principle of legality" enshrined in Article 50(2)(n) of the Constitution. 

This principle requires criminal laws to be precise enough for a citizen to understand exactly what conduct is prohibited. 

By failing to define what constitutes a "disturbance", the section left too wide a margin for subjective interpretation by the police and the courts.

​Furthermore, the judge found the section served as an insidious form of censorship. 

Through criminalising speech that merely "disturbed" or "offended" public officers without meeting the high constitutional threshold of incitement to violence or hate speech, the law created a chilling effect on the public’s right to seek and impart information.

The ruling clarified that in a modern democracy, citizens have the right to criticise the government and its measures, provided they do not cross into the specific exceptions listed under Article 33(2).

​With this judgment, the National Police Service has been ordered to immediately cease all enforcement of the quashed section. 

The ruling vindicates Kebaso, removing the threat of a six-month imprisonment that had hung over him since his release on bond. 

The  decision also signals a continuing trend in the judiciary to prune away vague, era-specific laws that conflict with the expansive Bill of Rights established in 2010.