In a landmark judgment for digital rights and free speech, the High Court of Kenya at Milimani has declared key provisions of the Computer Misuse and Cybercrimes (Amendment) Act 2025, unconstitutional.
The ruling, delivered by Justice Patricia Nyaundi, marks a significant defeat for state-backed online censorship. The petition challenging the law was brought forward by a coalition of civil society organizations, including the Kenya Section of the International Commission of Jurists (ICJ Kenya), ARTICLE 19 Eastern Africa, and the Bloggers Association of Kenya (BAKE), with the vital support of Amnesty International Kenya.
The petitioners successfully argued that the contested amendments granted excessive, unchecked powers to administrative bodies, effectively legitimizing arbitrary platform shutdowns and criminalizing speech based on subjective standards.
The High Court focused its ruling on two highly controversial sections of the amended law, citing severe constitutional overreach:
1. Section 6(1)(j)(a) – Administrative Censorship Without Oversight
- The Provision: This section empowered the National Computer and Cybercrimes Coordination Committee (NC4) to block or disable access to websites and applications suspected of hosting unlawful content, including violent extremism, terrorism, and child sexual exploitation.
- The Ruling: Justice Nyaundi ruled that the provision granted sweeping censorship powers to an administrative body without adequate safeguards or judicial oversight, creating an unconstitutional system of prior restraint. The Court emphasized that the State failed to demonstrate how these limitations met the strict thresholds of Article 24 of the Constitution, which demands that any restriction on fundamental freedoms be clear, precise, and demonstrably justifiable in an open and democratic society.
2. Section 27(1)(b) – Vague Criminalization of Speech
- The Provision: This clause sought to criminalize any communication deemed “likely” to cause another person to commit suicide.
- The Ruling: The Court invalidated the provision on the grounds that it was vague, overly broad, and built on speculative standards. Justice Nyaundi noted that penalizing citizens based on the subjective and uncertain criteria of what is likely to cause an action violates the core constitutional principle of legality.
Defenders of digital freedoms widely celebrated the High Court’s decision, viewing it as a crucial shield against state overreach in the digital sphere.
“This ruling is a resounding affirmation of freedom to seek, receive and impart information online. The Court has rightly held that the power to restrict access to online content must be subject to judicial oversight and cannot be left to an administrative body.” Christine Alai, Chairperson, ICJ Kenya
“Today’s judgment is a victory for the digital rights of all Kenyans. The Court has sent a clear message that vague and overly broad provisions that criminalise speech based on speculative standards have no place in our legal framework.” Patrick Mutahi, Acting Regional Director, ARTICLE 19 Eastern Africa
“This judgment restores our confidence in the judiciary and affirms that the internet is a space for free expression, not for censorship. We will continue to fight for a digital environment that is open, inclusive, and respectful of fundamental rights.” Kennedy Kachwanya, Chairperson, Bloggers Association of Kenya (BAKE).