A landmark ruling has dismantled two of Kenya’s most weaponised digital speech laws, with the Court of Appeal declaring Sections 22 and 23 of the Computer Misuse and Cybercrimes Act (2018) unconstitutional, a decision that reverses part of the 2020 High Court judgment and reshapes the boundaries of online free expression in Kenya.
A three-judge bench — Justice Patrick O. Kiage, Justice Aggrey Muchelule, and Justice Weldon Kipyegon Korir — found that the provisions governing “false information” failed the constitutional test of clarity and violated the freedom of expression and media rights guaranteed under Articles 33 and 34 of the Constitution.
The Case That Changed Kenya’s Digital Rights Landscape
The appeal was brought by a coalition of civil society and media organisations: the Bloggers Association of Kenya (BAKE), Article 19 Eastern Africa, the Kenya Union of Journalists (KUJ), the Law Society of Kenya (LSK), and others. Together, they sought to strike down 26 sections of the Act, arguing the provisions were vague, overbroad, and designed to suppress dissent.
The court agreed, but only in part.
What the Court Decided
The bench ruled that Sections 22 and 23, commonly known as the “fake news” offences, could not withstand constitutional scrutiny. Both sections lacked the precision required by law and infringed upon constitutionally protected expression.
“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.”
Immediate Call to Drop Pending Prosecutions
Mercy Mutemi, who represented BAKE in court, went further, calling on the Director of Public Prosecutions to act without delay.
“The fake news offences have been weaponised time and again to target journalists, content creators, and members of the public who dare to speak truth to power,” she said. “We urge the Office of the Director of Public Prosecutions to immediately discharge any Kenyan charged under the now-unconstitutional Sections 22 and 23. Any further prosecution under those offences is unconstitutional.”
A Partial Victory and Unfinished Business
The ruling carries significant weight, but the petitioners acknowledge the fight is far from over.
The court declined to strike down the investigation procedures within the Act provisions the petitioners argued enable mass surveillance. That refusal cast a long shadow over an otherwise historic day, particularly given the crackdowns that followed Kenya’s June 2024 protests.
“This is bittersweet,” said Demas Kiprono, Executive Director of ICJ Kenya, who represented Article 19 Eastern Africa. “The retention of Section 27 which we believe is not only overbroad and vague but grossly disproportionate in its penalties requires us to consider further legal intervention to safeguard digital civic space for Kenyans.”
The petitioners are now reviewing the full judgment, particularly on privacy rights and Section 27, and are exploring all further legal avenues — including a potential appeal to the Supreme Court.
Why This Ruling Matters
Since the Act’s enactment in 2018, Sections 22 and 23 have functioned as a legal instrument of intimidation. Journalists, bloggers, activists, and ordinary citizens faced arrest and prosecution for online speech that authorities labelled “false.” The threat alone silenced many voices.
Today’s ruling removes that threat at least in part. It sends a clear signal that broad, vaguely worded laws cannot override constitutional protections, and that courts retain the authority to check legislative overreach even in the digital sphere.
The petitioners remain committed to ensuring future legislation aligns with international human rights standards.
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