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WEAPONIZING TERROR LAWS: HOW KENYA'S GOVERNMENT IS CRIMINALIZING DISSENT

A Constitutional Crisis Unfolding in Kenya's Courts

Author

Gerald Kombo
July 31, 2025

Kenya stands at a critical juncture. What began as peaceful #SabaSaba2025 protests calling out police brutality, runaway public debt, and fiscal mismanagement has snowballed into a full-scale constitutional crisis. The state is now weaponizing counter-terrorism laws to suppress dissent, charging demonstrators as terrorists under the Prevention of Terrorism Act (POTA).

In response, five civil society organizations MidRift HURINET, County Governance Watch, Foundation for Dialogue, YADEN, and GEMA WATHO have filed Constitutional Petition No. ____ of 2025 at the High Court. This case could redefine Kenya’s democratic trajectory.

1. THE FACTS: HOW PROTESTERS ARE BEING CHARGED AS "TERRORISTS"

Unprecedented Charges

Over 70 young Kenyans face life imprisonment under Section 4(1) of POTA, accused of:

  • Vandalism of public infrastructure

  • Arson (burning tires and vehicles)

  • Petty acts like stealing a bicycle, mattress, and even the national flag

Yet POTA’s Section 2 clearly defines terrorism as involving:

✔️ Use of firearms or explosives
✔️ Release of toxic or radioactive substances
✔️ Intent to cause mass casualties

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“Charging a 19-year-old with terrorism for stealing a bicycle isn’t justice it’s political theatre. It betrays real terror victims and shreds the Constitution.”
Advocate Wambugu Wanjohi

Misuse of Specialized Courts

The Kahawa Law Courts, established to handle high-level terrorism cases, are now overwhelmed with protest-related charges diverting resources from genuine national security threats.

2. HISTORY REPEATING: FROM MAU MAU TO GEN Z

Echoes of Colonial Tactics

In 1952, the British colonial regime:

  • Labeled Mau Mau freedom fighters as terrorists

  • Declared a state of emergency

  • Suspended civil liberties to justify brutality and torture

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“The colonial government labeled Mau Mau as terrorists to dehumanize them and suppress resistance. Today, we’re witnessing the same playbook. The state is using POTA not to protect, but to punish legitimate dissent.”

Advocate Wanjohi

The State's New Target: Youth

Kenya’s youth-led protest movement is being framed as a security threat:

  1. Stigmatization through the “terrorist” label

  2. Overreach by stretching POTA beyond its purpose

  3. Suppression of democratic energy through intimidation

The petition identifies clear constitutional breaches:

Article

Violation

Example

Art. 37

Right to protest

Peaceful demonstrators charged under terrorism law

Art. 50

Right to fair trial

Life sentences for minor infractions

Art. 157(11)

DPP’s impartiality duty

Politically motivated prosecutions

  • Misapplication of Section 4(1) of POTA:
    The petition argues that the Director of Public Prosecutions (DPP) has stretched the law far beyond its intended scope by charging peaceful protesters under terrorism laws. Section 4(1) was never designed to criminalize civil disobedience or political expression.

  • Violation of the Proportionality Principle (Article 24):
    Life imprisonment for offenses like vandalism or petty theft such as allegedly stealing a bicycle or flag fails the constitutional test of proportionality. The punishment is grossly excessive compared to the alleged acts.

  • Denial of Due Process:
    Many of the accused were denied access to legal counsel, arraigned without adequate time to prepare, and processed through specialized courts not meant for protest-related cases. This undermines Article 50, which guarantees the right to a fair trial.

  • Discriminatory Targeting of Youth:
    The charges disproportionately affect young protesters, revealing a pattern of generational discrimination. The state appears to be using the terrorism label to intimidate and silence Kenya’s youth movements.

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“The DPP has the power to prosecute, but not the power to experiment with lives. This is a dangerous experiment and it's unlawful.”

Advocate Wanjohi

4. THE BROADER IMPACT: WHY KENYANS SHOULD BE CONCERNED

Damage to Counter-Terrorism Strategy

  • Diluting POTA by using it on protesters weakens its legitimacy

  • Overburdened anti-terror courts delay justice for real victims

  • State repression risks radicalizing youth rather than deterring extremism

Global Fallout

Kenya risks:

  • International condemnation over human rights violations

  • Loss of counter-terrorism funding from global partners

  • Travel restrictions and reputational damage

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“We are not saying violent extremism shouldn’t be prosecuted. We’re saying: draw the line. Protest is not terrorism.”

Advocate Wanjohi

5. THE WAY FORWARD: PETITIONERS’ DEMANDS

The High Court has been urged to:

  1. Immediately suspend all POTA-related protest prosecutions

  2. Issue a binding judicial interpretation: Protest ≠ Terrorism

  3. Direct the DPP to withdraw unconstitutional charges and uphold constitutional integrity

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“If the courts do not draw this line now, the cost will be paid by Kenya’s democracy for generations to come.”

Advocate Wanjohi

Advocate Wambugu Wanjohi is a constitutional lawyer and human rights defender in Kenya. He represents a coalition of civil society organizations challenging the misuse of the Prevention of Terrorism Act (POTA) to prosecute peaceful protesters. Known for drawing sharp historical and legal parallels, Wanjohi has emerged as a key voice against the criminalization of dissent and the erosion of democratic rights. He advocates for a clear distinction between legitimate protest and terrorism, warning that failure to do so risks undermining Kenya’s constitutional order.