Colonialism, Criminal Law, and the Dustbin of History

In a ruling that’s essential past Kenya, the Kenyan Excessive Courtroom has delivered a milestone judgment. By putting down a provision of the Kenyan Felony Code on subversion, the Courtroom takes a major step in the direction of additional getting rid of the colonial legacy within the Kenyan authorized system. The judgment exemplifies how judges in postcolonial contexts interpret the legislation in opposition to the backdrop of the nation’s historical past.

The dustbins of historical past

The duty of bringing transformative constitutions to life requires courts to be revolutionary and to be a brand new place of jurisprudential creativity. Judges are referred to as upon to mud off the legal guidelines that existed earlier than the promulgation of transformative constitutions; they’re referred to as upon to stroll with their brushes and make sure that all legal guidelines enacted in colonial instances adjust to the Structure.

Some constitutions (for instance, the Kenyan and South African) comprise specific provisions often known as the developmental clause, requiring the court docket to develop the legislation if the legislation doesn’t give impact to a proper or basic freedom. Judges are to make sure that no legislation stays incongruent with the constitutional scheme. Put in a different way, legal guidelines ‘caught up in a time warp’ have to be ‘swept into the dustbins of historical past’. Lately, one other choose captured this activity in flowery phrases, saying that the transformative Structure is now in pressure. Its wind should blow by way of Kenya’s whole authorized system, each legislation, each hamlet, each village and each establishment.’

That is precisely what occurred within the case Katiba Institute and Others v The Director of Public Prosecutions and others, the place the court docket was requested to find out the constitutionality of part 77(1)(a) of the penal code that gives for the offence of subversive actions. The get together, Joshua Ayika, posted on X (previously Twitter) that the military would possibly take over the federal government for 90 days. Joshua made this submit throughout demonstrations in opposition to the excessive price of dwelling led by the opposition events. He was rapidly arrested and charged underneath the impugned provision. The petitioners’ case was fairly easy: the offence of subversion is a colonial legacy that limits freedom of expression by way of a vaguely worded offence and doesn’t have a spot in a contemporary democratic state.

Colonial legacies in commonwealth nations

The case is a really poignant instance of how – though the British left their colonies many a long time in the past – the shadows of colonialism nonetheless loom over their former territories. A lot of the present penal codes in these nations have been inherited from the British, and successive regimes have retained many of the offences. Utilizing imprecise language, a number of the offences have been launched by the British to stifle dissent and additional marginalize the poor and marginalized members of society. The concept was to punish, segregate and management folks. A few of these colonial relics embody criminalising homosexuality, vagrancy, sedition, subversion, prison defamation, and so forth. Immediately, postcolonial regimes notoriously exploit these colonial prison legal guidelines to curtail constitutional rights.

The realized choose deserves credit score for appropriately contextualising the offence of subversion. Whereas labelling it a colonial relic, the choose famous that

105. It’s not removed from our lips and eyes that impartial Kenya inherited from the colonial state a repressive system….135. It due to this fact goes with out say that, Part 77(1) and (3) of the penal code is a colonial legacy which limits freedom of expression by way of the vaguely worded offence of subversion.

The Judgment could also be doing a number of issues, however most significantly, it indicators an finish to the colonial holdovers within the penal codes in former British colonies. Just like Mauritius’ latest description of the offence of homosexuality as a colonial relic, the Kenyan excessive court docket is sending a message that it’s time to rid the authorized system of colonial legacies.

Memorial Constitutionalism and Transformative Constitutions

Understanding this dimension of the Kenyan Excessive Courtroom’s judgment requires one additional transient contextualization, specifically, to position the judgment inside the context of “memorial constitutionalism”. A memorial Structure recognises the nation’s darkish and violent historical past and previous atrocities. As memorials, these constitutions function a safeguard in opposition to forgetting. They remind the residents of the infamous previous and the longer term they need to create; they give the impression of being ahead and backwards.

Memorial constitutionalism, due to this fact, requires that judges not solely contemplate the literal textual content of the legislation but in addition take into consideration the broader context, together with the nation’s historical past. The Supreme Courtroom of Kenya has embraced this strategy of interpretation, stating:

However what is supposed by a holistic interpretation of the Structure? It should imply decoding the Structure in context. It’s a contextual evaluation of a constitutional provision, studying it alongside and in opposition to different provisions in order to take care of a rational explication of what the Structure have to be taken to imply within the mild of its historical past, of the problems in dispute, and of the prevailing circumstances.

Realising that „historical past is a superb revealer of intent“, the realized choose within the subversion case guides the reader by way of a journey down reminiscence lane. The Choose reminds readers of a darkish chapter of the nation. Publish-independence Kenya was marked by Sedition prison prosecution, “mwakenya” and “pambana” prosecutions, and “Nyayo home torture“ (Para 105). Additional, some offences within the penal code have been utilized by the colonial regime to prosecute and convict pre-independence African leaders. The realized Choose concludes relating to the aim of those offences: ‘It’s due to this fact protected to conclude that Chapter IX was supposed as a regime instrument for self-preservation’. (Para 107). Notably, the choose notes that the character and design of a transformative Structure

110 .. intentionally appreciates that Kenyans desire a break with the darkish previous, all the system of legislation was a colonial hand-down with very minor and beauty variations that have been supposed for self-preservation and colonial repression

Void for vagueness doctrine

Along with the historic dimension, the vagueness of the prison provision additionally performs a central function within the judgment. Vaguely worded penal provisions are a major risk to freedom of expression since residents are left unsure about what actions would possibly lead to prison sanctions. Governments typically goal to forged a large web to seize each supposed and unintended conduct. Consequently, vaguely worded penal provisions are problematic, not less than on two fronts: firstly, they fail to offer residents with clear discover of what the legislation prohibits. Secondly, they undermine the precept of separation of powers. The previous calls for transparency in authorized expectations, whereas the latter requires solely parliament to determine offences. Nevertheless, imprecise legal guidelines delegate the accountability of defining offences to legislation enforcement, prosecutors, and judges.

The Choose, due to this fact, held that part 77 of the penal code was overly broad and imprecise. The realized choose famous that

The part is imprecise and over-broad firstly by not explicitly limiting the liberty of expression however including the limitation on to different acts or conduct, there exists complicated definition of “subversion” particularly concerning the that means of “prejudicial to public order, safety of Kenya and administration of justice”, “in defiance of or disobedience to the legislation and lawful authority; illegal society” or “hatred or contempt or excite disaffection in opposition to any public officer or any class of public officer”. Not one of the phrases used within the offence are outlined or able to exact or goal authorized definition or understanding.

The void for vagueness doctrine serves a necessary goal in a constitutional scheme. Whereas a state can restrict a proper, this energy can’t be exercised arbitrarily. Because of this, most constitutions at present comprise a limitation clause, which regularly requires {that a} proper can solely be restricted by legislation. The void for vagueness doctrine will be deployed in opposition to the crafty techniques of a state that employs imprecise and broad language to restrict a proper. The doctrine rejects the tendency of legislatures to undertake an offhand strategy, granting enforcers unrestricted discretion to wield prison powers as they see match or leaving offences open to interpretation by judges.

Conclusion

The judgment is a major win for freedom of expression and speech in Kenya. It’s a reminder {that a} transformative and memorial Structure have to be allowed, within the phrases of Justice Sifuna, “to smoke us out of our earlier hideouts, out of our former established order that prevailed earlier than its promulgation“. The judgment tremendously contributes to the well timed dialogue on decriminalising colonial relics – in Kenya and past.