A provision of Kenya penal code on incitement to violence and disobedience of the law has been declared unconstitutional by the High Court while ruling on a petition filed by the former Machakos Senator Johnstone Muthama after being charged over same.
In the petition, Mr. Muthama, through his lawyer stated that on September 23, 2015, at a public rally at Uhuru Park, Nairobi, he made utterances in opposition to government policies which were interpreted as incitement to violence by State security agencies. According to his lawyer, the senator had tongue-lashed the government over rising cases of insecurity, failure by government to respect public institutions, failure to stem corruption, disobedience of court orders and failure to address issues raised by teachers’ unions. Mr. Muthama said that the prosecution was selective, punitive, discriminatory and targeted him on account of his political affiliation and persuasion.
A three bench judge declared that the penal code is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution and that it also infringes rights associated with a fair trial.
That section of the penal code provides that the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community. But the judges said that this section of law offends the rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”
The bench observed that the section should be amended to conform to the Constitution The court then directed the Attorney General to prepare a Bill to be presented to parliament with a view of remedying the deficiency in the said section of the penal code, within a period of one year.