The High Court of Kenya’s recent decision to nullify Section 95(1)(b) of the Penal Code has been welcomed by many as a pivotal development for freedom of expression in the country. The now-overturned law had criminalized creating a disturbance likely to breach the peace, enabling police to arrest individuals for causing public commotion or behaving in a way perceived as disorderly, even if no violence ensued.
Justice Andrew Bahati Mwamuye, delivering the ruling in Nairobi, identified the law’s lack of clarity and its broad and vague language as a violation of constitutional standards. The ruling emphasized that the legislation contravened Article 33 of Kenya’s Constitution, which safeguards the right to freedom of expression. For more insights, the decision is documented in JURIST – News.
The case gained traction following a petition by the Law Society of Kenya, sparked by the arrest of activist Morara Kebaso in October 2025. Accused of causing a likely breach of the peace while monitoring government projects, Kebaso challenged the law, arguing it was used to target those exercising constitutional rights.
The court’s decision underscores the need for precision in criminal statutes, ensuring that citizens can understand what behaviors are legally punishable. Such clarity prevents arbitrary enforcement, a principle crucial for maintaining the rule of law. By affirming that laws must be both clear and predictable, the ruling reinforces judicial oversight over executive actions.
This judgment may also herald changes in policing standards. Law enforcement officers are now required to adhere to well-defined charges, and prosecutors must ensure that these charges align with constitutional principles. This offers enhanced protection against arbitrary arrest, particularly for those critiquing government actions.
The judgment has been celebrated by Kenyans who view it as a confirmation that constitutional supremacy trumps outdated statutory language. By voiding the disturbance offense, the High Court has recalibrated the delicate balance between state control and individual freedom, reaffirming the Constitution as the ultimate protector of rights.