In a landmark victory for civil liberties, the High Court has struck down Section 95(1)(b) of the Penal Code, declaring the offense of "creating a disturbance" unconstitutional. Justice Bahati Mwamuye, in a ruling that will reverberate through police stations across the country, termed the law a "colonial relic" used to stifle dissent and harass innocent citizens.

The judgment effectively disarms the police of one of their most abused weapons. For decades, the vague charge of "creating a disturbance in a manner likely to cause a breach of the peace" has been the go-to provision for arresting protesters, activists, and anyone who dared to raise their voice against authority. By declaring it null and void, the court has affirmed the supremacy of the 2010 Constitution and the freedom of expression it guarantees.

The Case That Changed the Law

The ruling stems from a petition challenging the prosecution of activist Morara Kebaso and others, who had been slapped with these charges for their role in monitoring government projects and peaceful picketing. The Law Society of Kenya (LSK), which joined the suit, argued that the section was too broad and open to interpretation, allowing law enforcement officers to criminalize innocent behavior based on their subjective feelings.

Justice Mwamuye agreed, noting that a law must be precise enough for a citizen to know what is prohibited. "A provision that leaves the definition of a crime to the whims of the arresting officer is anathema to the rule of law," he ruled. He directed the immediate cessation of all prosecutions under this section, effectively quashing hundreds of pending cases.

• The Provision: Section 95(1)(b) criminalized brawling or creating a disturbance in public. It carried a prison term of up to six months.
• The Impact: This ruling prevents police from using "breach of peace" as a holding charge to detain critics overnight or to break up peaceful assemblies.
• The Reaction: Human rights groups have hailed the decision as a "restoration of sanity," while the Office of the Director of Public Prosecutions (ODPP) has been ordered to review all files charged under this section.

A New Era for Protest?

This judgment is particularly significant in the current political climate, where street protests and civic activism are on the rise. By removing the threat of arbitrary arrest for "disturbance," the court has emboldened citizens to exercise their rights without fear of petty criminal charges. However, it also places a burden on the police to find professional, evidence-based methods of maintaining order.

"This is the end of the police state mentality," said LSK President Faith Odhiambo (implied context). "You cannot arrest someone just because they are loud or annoying. You must prove a real crime."

As the dust settles, the Attorney General is expected to appeal, but for now, the message from the judiciary is clear: the colonial playbook is closed. The High Court has drawn a line in the sand, and the right to be a "disturbance" to the comfortable status quo is now, in many ways, protected by law.