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Court of Appeal of Kenya has struck down legal provisions that criminalised the publication of “false information” online, dealing a significant blow to parts of the country’s cybercrime law that rights groups say have been used to target bloggers, journalists, and social media users since 2018.
In a ruling delivered in Nairobi on Friday, a three-judge panel comprising Patrick Kiage, Aggrey Muchelule, and Weldon Korir invalidated Sections 22 and 23 of the Computer Misuse and Cybercrimes Act.
The judges ruled that the provisions were vague and violated constitutional protections guaranteeing freedom of expression and media freedom.
The case was filed by several civil society organisations, including the Bloggers Association of Kenya (BAKE), Article 19 Eastern Africa, and the Kenya Union of Journalists.
BAKE Chairperson Kennedy Kachwanya described the decision as a major victory for digital rights and free speech in Kenya.
“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,” Kachwanya said following the judgment.
In their ruling, the judges said the offences relating to “false publications” and “false information” failed the constitutional test of clarity and risked criminalising ordinary online speech.
The court noted that the provisions were drafted so broadly that they could apply to individuals who shared information without knowing it was inaccurate. Criminalising “falsity,” the judges said, could also undermine satire, opinion, and journalistic mistakes.
Kenya enacted the Computer Misuse and Cybercrimes Act in 2018 to address growing digital threats such as online fraud, hacking, and cyber harassment. However, from its inception, the legislation faced criticism from media organisations and digital rights groups who argued that some sections could be used to police online speech.
Since the law came into effect, several bloggers and social media users have reportedly been investigated or arrested under its “false information” provisions, drawing condemnation from press freedom advocates.
The High Court of Kenya had earlier upheld most sections of the law in 2020, prompting an appeal that ultimately led to Friday’s ruling.
While striking out the provisions on false information, the Court of Appeal left most of the legislation intact.
The judges upheld sections allowing investigators to obtain court warrants to search and seize digital data, issue production orders requiring service providers to disclose subscriber information, and conduct real-time data collection during investigations.
Provisions addressing offences such as child sexual exploitation material and cybersquatting — the practice of registering domain names in bad faith using another person’s trademark or identity — were also retained.
Digital rights advocates welcomed the ruling but warned that concerns remain over the law’s surveillance powers.
BAKE’s lawyer, Mercy Mutemi, said the invalidated provisions had repeatedly been used to target journalists, content creators, and members of the public.
“The fake news offences have been weaponised time and again to target journalists, content creators, members of the public, and anyone who dares to speak truth to power,” Mutemi said.
The petitioners said they are reviewing the judgment and may consider further legal action against other sections of the law that they argue still pose risks to privacy and civil liberties online.
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