By Bramuel Wanzala
A petitioner has moved to the High Court seeking to nullify Section 40 of the Penal Code, which provides for the offence of treason, on grounds that it is unconstitutional.
In the petition, the applicant Mr. Obwogi Jonathan has sued the Attorney General, who serves as the principal legal adviser to the Government of Kenya under Article 156 of the Constitution. The petitioner contends that the Attorney General has failed in her constitutional duty to defend the constitutionality of legislation.
The petition specifically challenges Section 40(1) of the Penal Code, arguing that the provision is unconstitutional due to vagueness and overbreadth. According to the court filings, the language used in the section — including terms such as “compasses,” “imagines,” and “any overt act or deed” — is unclear and excessively wide in scope, making the law difficult to interpret and enforce consistently.
The petitioner argues that the alleged vagueness and overbreadth are interconnected, asserting that the lack of precision allows the provision to capture conduct beyond any legitimate legislative objective. As a result, the law is said to fall short of the constitutional threshold set out in Article 24, which governs the limitation of fundamental rights and freedoms.
It is further contended that the section fails to provide citizens with adequate notice of what conduct is prohibited, thereby undermining constitutional standards of clarity and fairness in criminal legislation.
The petition states that the impugned provision infringes on Article 33(1) of the Constitution, which guarantees freedom of expression, including the right to seek, receive and impart information and ideas, as well as artistic and academic freedom. It also cites Article 37, which protects the right to assemble, demonstrate, picket and present petitions to public authorities, and Article 38, which safeguards political rights.
According to the petitioner, the broad wording of Section 40(1) could lead to the criminalisation of constitutionally protected speech and political activity. The filing gives examples such as opposition leaders calling for the resignation of the President, protesters carrying placards demanding political change, journalists analysing possible regime transitions, and academics discussing revolutions in a historical context.
The petitioner further argues that even private expressions of frustration, if later communicated to another person, could potentially fall within the scope of the provision.
In addition, the applicant claims that the section violates Articles 10(2)(a), 24, 29, 25(c), 26(3), 27, 32, 33, 37, 38, 47 and 50(2)(a) and (g) of the Constitution.
In the final prayers, the petitioner is seeking a declaration that Section 40(1) and (3) of the Penal Code are unconstitutional and null and void for being inconsistent with the Constitution of Kenya.
In the alternative, the petitioner asks the court to declare that Section 40(3), to the extent that it prescribes the death penalty, violates constitutional provisions including Articles 26(3), 50(2)(g), 25(c) and 27, and should therefore be invalidated.
The petition also seeks a finding that Section 40(1) is unconstitutionally vague and overbroad, and inconsistent with Articles 24, 29, 33, 37, 38, 47 and 50(2)(a), rendering it null and void.
Further, the applicant is urging the court to order that any declaration of unconstitutionality take immediate effect upon delivery of judgment.
The court is also being asked to direct the Attorney General to prepare and submit to Parliament, within six months, proposed amendments to align the Penal Code with constitutional standards.
Additionally, the petitioner wants the court to compel the Director of Public Prosecutions to review all ongoing prosecutions and past convictions brought under Section 40 and to take appropriate remedial action in light of the court’s determination.
The petitioner is also seeking costs of the petition and any other relief the court may deem just and appropriate.The petition was drawn and filed by Attalo Alvin, the advocate for the petioner.
