The Court of Appeal (CoA) has partially declared sections of the country’s cybercrime legislation unconstitutional in a landmark ruling touching on digital rights and online expression.
The decision was delivered by the Court of Appeal on Friday, March 5, in a case filed by the Bloggers Association of Kenya (BAKE) challenging provisions of the Computer Misuse and Cybercrimes Act, 2018.
The association had argued that several sections of the law were too broad and could be used to target journalists, bloggers, and ordinary social media users engaged in online communication.
The law section has largely been used by the Directorate of Criminal Investigations (DCI) to arrest critics and bloggers for allegedly spreading falsehoods.
In its judgment delivered in Nairobi, the appellate court found that sections 22 and 23 of the law were unconstitutional because they were drafted in a manner that risked criminalising innocent conduct.
The judges said the provisions were overly wide and lacked clear targeting of specific criminal behaviour, noting that the offences could potentially capture people who share information without malicious intent.
The court warned that the sections were similar to ‘unguided missiles’ in their legal application, stating that they were likely to affect both originators of information and innocent individuals forwarding content.
“In the end, this appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being so broad as to the extent that they are likely to net innocent persons. It is only to this extent that we vary the learned Judge’s judgement,” the ruling read in part.
According to the ruling, the offences created under the disputed provisions were difficult to enforce because the definition of false information was not sufficiently precise in a digital environment where information may be interpreted differently.
The three-judge bench further observed that freedom of political expression and public debate must be protected, especially on matters of public interest circulated through social media platforms.
However, the appellate judges upheld most other sections of the cybercrime law, finding that they contained adequate safeguards to protect constitutional rights while still allowing the state to regulate harmful online conduct.
At the same time, the court ruled that there was sufficient justification under the Constitution to maintain other provisions of the law, rejecting arguments by BAKE that the entire Act was unconstitutional.