In a historic ruling for Kenya’s digital landscape, last Friday, the Court of Appeal set aside the 2020 High Court judgment endorsing the entire Computer Misuse and Cybercrimes Act (2018). The move has been hailed by civil rights organisations as a victory for democracy and free speech in the East African country.
Court of Appeal judges – Justices Patrick Kiage, Weldon Korir and Aggrey Muchelule – have dismissed the ruling by the High Court that the Act was constitutional.
The bone of contention were sections 22 and 23, which the appellate judges have ruled unconstitutional. These sections refer to criminal offences related to publication of “false information”.
Judges Kiage, Korir and Muchelule have ruled that the sections failed the test of constitutional clarity and infringed upon the freedom of expression and media, as guaranteed under articles 33 and 34 of the Constitution.
The judges ruled: “In the end, this appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being too broad to the extent that they are likely to net innocent persons.
“It is only to this extent that we vary the learned (High Court) Judge’s judgment. Otherwise, all the other grounds of appeal are found to be without merit and are hereby dismissed.”
The Bloggers Association of Kenya (BAKE), alongside Article19 Eastern Africa, the Kenya Union of Journalists (KUJ), the Law Society of Kenya (LSK) and other organisations sought to strike down some sections of the Act, arguing they were “vague, overbroad and intended to stifle dissent”.
Kennedy Kachwanya, chairperson of BAKE, welcomed the ruling as a win for content creators and journalists as well as every Kenyan that uses the internet to speak truth to power.
“The court has affirmed that the internet is a space for accountability, not a tool for state-sponsored intimidation,” Kachwanya said.
Okia Okoti, senator of Busia County and executive director of Kenyans for Justice and Development Trust hailed the Court of Appeal’s ruling as “a victory for the Constitution and for every Kenyan who speaks freely online”.
“The quashing of sections 22 and 23 of the Computer Misuse and Cybercrimes Act ends provisions that have been used to harass and silence citizens,” he said.
The ruling is a major blow for the Kenyan government, which had the Attorney General, the National Assembly and the Inspector General of Police and the Director of Public Prosecutions as respondents.
Critics of the government of President William Ruto accuse it of stifling citizens' freedoms, contrary to pledges made before the 2022 elections.
Rights groups allege ‘digital authoritarianism’ including internet shutdowns, surveillance and the weaponisation of online platforms against activists, especially at the peak of Gen Z protests that began in 2024.
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