In a historic ruling for Kenya’s digital landscape, the Court of Appeal has today set aside part of the 2020 High Court judgment, declaring key sections of the Computer Misuse and Cybercrimes Act (2018) unconstitutional.
The appeal, filed by the Bloggers Association of Kenya (BAKE), Article19 Eastern Africa, the Kenya Union of Journalists (KUJ), the Law Society of Kenya (LSK) and others, sought to strike down 26 sections of the Act that the petitioners argued were vague, overbroad, and intended to stifle dissent.
A three-judge bench comprising Justice Patrick O. Kiage, Justice Aggrey Muchelule, and Justice Weldon Kipyegon Korir ruled that sections covering “false information” (Sections 22 and 23) 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.
“This is not just a win for content creators or journalists; it is a win for every Kenyan who uses the internet to speak truth to power,” said Kennedy Kachwanya, Chairperson of BAKE. “The court has affirmed that the internet is a space for accountability, not a tool for state-sponsored intimidation.”
Mercy Mutemi, who represented the Bloggers of Association of Kenya said ‘The fake news offences have been weaponized time and time again to target journalists, content creators, members of the Public and anyone who dares to speak truth to power. This is a pivotal moment to have those offences declared unconstitutional. We urge the Office of the Director of Public Prosecutions to immediately discharge any Kenyan who has been charged under the now unconstitutional Sections 22 and 23 of the Computer Misuse and Cybercrimes Act. Any further prosecution under those offences is unconstitutional. While we celebrate this vindication from the Court of Appeal, we are also conscious that the fight is not over yet. The Court of Appeal did not agree with our arguments that the investigation procedures in the Computer Misuse and Cybercrimes Act are overbroad and are currently being used for mass surveillance with such dire consequences as we saw in the aftermath of the June protests. We will regroup and keep fighting as we strongly believe in the sanctity of the right to privacy as guaranteed in the Constitution’
Demas Kiprono, Executive Director of ICJ Kenya, who was also representing Article19 Eastern Africa in the case, welcomed the decision, noting that the ruling prevents the weaponisation of the law to arrest citizens for their online opinions. “ This is bittersweet. The retention of Section 27, which we believe is not only overbroad and vague but grossly disproportionate in terms of penalties, requires us to consider further legal intervention to safeguard digital civic space for Kenyans”.
The petitioners are currently reviewing the judgment, especially with respect to privacy and section 27 of the act and are exploring all further legal avenues, including a potential appeal to the Supreme Court, to ensure that the rights of Kenyans are protected.
The petitioners remain committed to ensuring that future legislation aligns with international human rights standards.
