NAIROBI, Kenya — A petitioner has filed a constitutional petition seeking to have Kenya’s treason law declared unconstitutional, arguing that its wording is vague, overly broad, and capable of suppressing legitimate political expression.
Obwogi Jonathan is challenging Section 40 of the Penal Code, which creates the offence of treason and prescribes the death penalty upon conviction.
The petition names the Attorney General of Kenya as the respondent, faulting her for allegedly failing to defend only legislation that meets constitutional standards.
“The impugned provision does not meet the test of clarity and precision required of criminal laws in a constitutional democracy,” the petitioner argues.
Grounds of the Challenge
Obwogi contends that Section 40(1) employs archaic and ambiguous language, including terms such as “compasses,” “imagines,” and “any overt act or deed.” He says this leaves the law open to subjective interpretation and inconsistent enforcement.
The petition asserts that the vagueness and overbreadth of the provision allow it to capture conduct far beyond legitimate national security concerns. Citizens, according to Obwogi, are not given fair notice of what constitutes treason, undermining constitutional principles of legality and fairness in criminal justice.
He warns that the law could criminalise ordinary political discourse, including:
- Opposition leaders are calling for the resignation of the President.
- Protesters demanding political reforms.
- Journalists analysing possible government changes.
- Academics discussing revolutions in a scholarly context.
Even private expressions of dissent, if later shared publicly, could potentially fall under the law.
Challenge to the Death Penalty
Obwogi also challenges Section 40(3), which prescribes the death penalty, arguing that it violates constitutional protections, including the right to life, equality before the law, and the right to a fair trial.
Among the remedies sought, the petitioner asks the court to:
- Declare Sections 40(1) and 40(3) unconstitutional and void.
- Strike down the death penalty under the provision, if the law is upheld.
- Compel the Director of Public Prosecutions to review all ongoing and past treason cases and take appropriate remedial action.
- Direct the Attorney General to propose legislative amendments within six months if the law is invalidated.
- Award costs and any other relief deemed just by the court.
The petition was drawn and filed by Attalo Alvin, highlighting the constitutional tension between national security legislation and citizens’ political freedoms.
