Kenya’s High Court declares arrests for “creating a disturbance” unconstitutional, arguing that they are protecting freedom of expression.
On February 12, 2026, Justice Bahati Mwamuye of the Kenyan High Court invalidated Section 95(1)(b) of the Penal Code.
This provision had criminalised “creating a disturbance in a manner likely to cause a breach of the peace,” punishable by up to six months in prison.
According to court documents, the judge ruled it broad, vague, and inconsistent with the 2010 Constitution, directing police to immediately stop enforcing it.
The Law Society of Kenya (LSK) spearheaded the challenge, labeling the law a ‘tool’ used to suppress conflict, as it often targeted activists, protesters, and citizens voicing grievances, choking public assembly rights.
The decision quashed charges against activist Morara Kebaso, arrested on October 8, 2025, at Lang’ata Police Station.
Kebaso faced the charge while monitoring government projects, highlighting police overreach. His case exemplified misuse of the vague statute against non-violent expression.
This victory tackles random arrests, reducing “police state” tactics amid public outrage over misconduct.
The declaration has been echoed by some activists, hailing it as essential for democratic rights and peaceful protests with youth and civil society groups seeing it as empowerment against over-policing.
Law enforcement must now prove specific crimes, not mere annoyance. While the Attorney General may appeal, the ruling reinforces constitutional supremacy.
Enacted during colonial rule, Section 95(1)(b) echoed oppressive tools to silence locals. Post-independence, it persisted, enabling harassment of journalists and demonstrators. LSK President Faith Odhiambo noted: “You cannot arrest someone just because they are loud.”
Experts predict fewer petty charges, protests like those against economic policies.
The step aligns Kenya with global standards prioritizing expression over vague offenses.
Now Citizens have gained back their power in terms of being able to boldly exercise their democratic right of holding space to challenge authority without fear of “disturbance” arrests.
