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.
BABU OWINO
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.
MATIANG'I
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.
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