MP moves to repeal punitive colonial law on ‘idleness’

Nakuru East MP David Gikaria has proposed to amend sections of the Penal Code that criminalize idleness and disorderliness to protect innocent Kenyans from police harassment. 

Parliament has begun debate on a proposed law that seeks to amend sections of the Penal Code to decriminalize idleness and disorderliness.

The Bill sponsored by Nakuru Town East MP David Gikaria wants MPs in the National Assembly to repeal sections of the Penal Code to protect innocent Kenyans from harassment by the police. 

Gikaria through the Penal Code (Amendment) Bill (2022) argues that the current provisions in the code, were inconsistent with various sections of the 2010 Constitution.

He specifically argues that because of certain loopholes in the Penal Code, law enforcement officers, especially the police, have been arresting innocent Kenyans on charges of idleness or even disorderliness.

He added that the inconsistencies with the 2010 Constitution, also infringes on the fundamental human rights and freedoms of Kenyan citizens trying to earn a living.

“The current Penal Code is being used by the police to harass Kenyans. The main objective of my Amendment Bill is to repeal Section 182 of the Penal Code Cap.63, which criminalizes idle and disorderly persons. Law enforcement officers frequently exploit Section 182 to target innocent members of the public under offenses like loitering,” said Gikaria. 

because of certain loopholes in the Penal Code, law enforcement officers, especially the police, have been arresting innocent Kenyans on charges of idleness or even disorderliness.

Gikaria

He further argues that according to the Constitution, Kenyans have the right to freedom of movement as long as their intentions are not malicious. 

However, when police officers intend to arrest or apprehend individuals in urban areas, they often resort to charges under Section 182 of the Penal Code. 

Offences under this section carry a maximum penalty of one month in jail or a fine of Sh100. However, according to Gikaria, if someone is arrested and charged with loitering, they may face fines ranging from Sh5,000 to Sh10,000, exceeding the legally prescribed maximum penalty.

Kacheliba MP Titus Lotee, while supporting the Bill, argued that the repeated misuse of Section 182 by the police had seen many individuals being driven into poverty due to unnecessary arrests. 

“The President has said he wants to elevate the livelihoods of mama mboga, boda boda riders and matatu operators. However, these are the people targeted most of the time by the police because of Section 182 of the Penal Code,” said Lotee.

“These people are accused of having noisy motorcycles or being disorderly due to the lack of parking spaces. The livestock they transport to the market are often suspected of being stolen property,” he added.  

Wajir North MP Ibrahim Saney on the other hand said the Penal Code had outlived its usefulness. He argued that its provisions perpetuate a colonial mentality that Kenyans have moved beyond, emphasizing the necessity of revising it. 

“People are put behind bars over the weekend, some with trumped up charges. This is uncalled for. It is draconian and unacceptable,” Saney said.