The proposed Computer Misuse and Cybercrimes (Amendment) Act 2024 in Kenya, assented by President William Samoei Ruto, introduces several clauses that critics argue pose a severe threat to fundamental rights and freedoms enshrined in the Kenyan Constitution, 2010.
While ostensibly intended to combat terrorism and cybercrime, key amendments grant the state overly broad powers that risk eroding the democratic cornerstones of freedom of expression, access to information, and due process.
A new lawsuit, filed by Reuben Kigame, argues that the new law severely infringes upon fundamental rights, including privacy and freedom of expression, and was passed through a flawed legislative process.
The most contentious amendment lies in the proposed new paragraph 6(1)(ja), which dramatically expands the power of the authorities to restrict online content.
This clause permits a “directive to render the website or application inaccessible” if it is proved to promote “unlawful activities, inappropriate sexual content of a minor, terrorism or religious extremism and cultism.”
The danger here is twofold:
1. Vague and subjective definitions
The terms “religious extremism and cultism” are dangerously vague. Without clear legal definitions, this language could be exploited by the state to target and silence minority religious groups, political critics, or activists whose opinions are deemed “extreme” or unpopular by the government. This directly contravenes the constitutional guarantee of freedom of conscience, religion, belief, and opinion (Article 32) and the freedom of expression (Article 33).
2. Prior restraint
Issuing a directive to make an entire website inaccessible is a form of prior restraint, a severe measure that stops speech before it is even accessed. This power could lead to the wholesale shutdown of platforms—not just the removal of specific content—creating a significant chilling effect that forces individuals and publishers to self-censor their activities to avoid being blocked.
Erosion of due process and property rights
Further undermining constitutional safeguards is the new Section 46A, which provides for “Further court orders,” even before a full conviction.
Section 46A(2) allows an “authorised person” (a term not clearly defined) to apply to a court for an order to remove content or close or deactivate a website or digital device based merely on the belief that it is being used to promote the same broadly defined activities (e.g., religious extremism).
- Bypassing Fair Trial: This provision suggests that platforms could be shut down or digitally seized based on the belief of an official, rather than a proven conviction. Such a process could bypass the robust requirements of a fair hearing (Article 50) and natural justice, potentially allowing for ex-parte (one-sided) court orders that severely impact a person’s digital livelihood without their full participation in the legal process.
- Digital Seizure of Assets: The power to “close or deactivate” a website or digital device effectively renders that digital property useless. Given the amendment’s broad definition of “asset” to include virtual property, this becomes a de facto seizure or destruction of property, threatening the constitutional right to property (Article 40) for online businesses, journalists, and civil society organizations.
Expansion of surveillance and privacy concerns
Finally, the amendment to Section 30 broadens the scope of the cyber harassment offence to include sending an email or making a call.
While stopping harassment is a legitimate goal, this expansion opens the door for state agencies to justify broader surveillance and monitoring of private communications, including emails and telephone calls, under the guise of investigating “cybercrimes.” This significantly strains the protection afforded by the right to privacy (Article 31), which guarantees the privacy of a person’s communications.
While fighting genuine threats like terrorism and cybercrime is necessary, the Cybercrimes Amendment Act appears to use these legitimate goals as a pretext for introducing powers that are overbroad, vague, and easily abused. The sweeping authority to shut down digital platforms based on subjective interpretations of “extremism” risks creating a censored and fearful online environment, directly contradicting the open, democratic ideals enshrined in the Kenyan Constitution.