The Kenyan High Court has delivered a significant ruling on digital rights, declaring that access to the internet is not a fundamental human right under the country’s Constitution. The ruling dismisses a public interest petition that had sought to compel the government to ensure universal connectivity and maintain manual options for all digital public services.
The decision has wide-reaching implications for Kenya’s rapid digital transformation efforts and the ongoing debate over digital inclusion.
In his judgment, Justice Lawrence Mugambi asserted that the Constitution does not recognize internet access as an independent, standalone right.
Instead, the court views the internet as a “medium”, a tool that facilitates the enjoyment of existing constitutional freedoms. According to the ruling, its protection falls within the framework of pre-existing fundamental rights, such as freedom of expression and access to information.
Furthermore, the court took a pragmatic stance on the financial demands of the petitioners’ request. Justice Mugambi deemed it “unrealistic to expect instant internet coverage across the entire country” due to the immense cost implications.
The petition was initially filed in 2022 by the Legal Advice Centre (Kituo Cha Sheria), alongside Nairobi resident Geoffrey Maina Mwangi.
The petitioners argued that the government’s aggressive migration of essential public services, including land searches, tax filing, and business registration, to online platforms was creating a form of social and economic exclusion. They contended that this move was leaving behind millions of Kenyans who lack access to broadband, computers, or the necessary digital skills, especially the poor, elderly, and illiterate. They argued that this digital divide violates constitutional guarantees of equality, human dignity, and access to justice.
State lawyers countered the petition, arguing that the government’s digitization policy is aimed at increasing efficiency and transparency, not exclusion. They maintained that a hybrid access system remains operational. They pointed out that physical offices, including Huduma Centres and mobile units, are still available to serve citizens who lack internet connectivity, ensuring that a total digital shutdown is not the default.