The Bloggers Association of Kenya have moved to court to challenge sections of a law which they say threatens the freedom of expression of the media.
Through lawyer Hellen Ngessa, the association Thursday claimed that Section 77 and 94 of the Penal Code could be maliciously used against bloggers, journalists and online activists.
The association sued the Director of Public Prosecutions and the Attorney-General in a case in which Article 19 and Embakasi East MP Paul Ongili alias Babu Owino are listed as interested parties.
They claimed that the said sections which touch on the offence of subversion and offensive conduct conducive to breach of peace, threaten the freedom of expression of the media under the provisions of the Constitution.
Since the Embakasi East MP was charged last year with these impugned sections, the association wants the court to temporarily suspend proceedings in his trial over the same to allow the determination of the now disputed law.
“Allowing proceedings in the criminal case in which the MP is facing trial would render the question of the constitutionality of Section 77 and 94 academic thus defeating the administration of justice by way of effective enforcement of the bill of rights,” said Ms Ngessa.
The lawyer argued that failure to suspend the MP’s trial would ultimately make the court’s final decision a mirage as there can be no use of a favourable determination if he ends up being convicted while the matter has been challenged in the High Court.
Mr Ongili was charged on September 27, 2017 with the offenses of subversion and use of force during elections.
He was arrested moments after being released on a Sh500,000 bond in a case in which he was accused of insulting President Uhuru Kenyatta and incitement to violence.
It was then that he was charged with offenses under the challenged sections of the law.
The case comes after Interior Cabinet Secretary Fred Matiang’i, in a press statement, said that the police are looking into the “role of some elements in the media fraternity who participated in the furtherance of an attempt to subvert or overthrow the government”.
At the same time, Dr Matiang’i directed that three private television stations — NTV, KTN and Citizen TV — which were shut down on Tuesday, to remain off air until investigations into the subversion claims against them are concluded.
But the TV stations have since obtained reprieve from court on the shutdown.
According to the bloggers’ association, sections 77 and 94 of the Kenyan Criminal law have a chilling effect on the public’s freedom of expression and also on the media.
While terming the said law as vague, the association said that protection of freedom extends to opinions and views yet these sections appear to be denying the public such a right.
They therefore want it permanently quashed and declared that its continued enforcement is unconstitutional as well as invalid.