Win For Bloggers As Court Strikes Down Cybercrime Act Criminalizing Publication of False Information

The Court of Appeal in Nairobi has declared unconstitutional key provisions of the Computer Misuse and Cybercrimes Act that criminalised the publication of false information online, dealing a major blow to sections of the controversial law.

In a judgment delivered by a three-judge bench comprising Justices Kiage, Muchelule and Korir, the appellate court partially allowed an appeal filed by the Bloggers Association of Kenya (BAKE) challenging several provisions of the 2018 legislation.

The appeal arose from a 2020 High Court decision by Justice James Makau, which had dismissed BAKE’s petition and upheld the constitutionality of the impugned provisions, finding that they did not violate fundamental rights and freedoms guaranteed under the Constitution.

Dissatisfied with that ruling, BAKE moved to the Court of Appeal, arguing that several sections of the law were vague, overly broad and posed a threat to constitutional freedoms, particularly freedom of expression and the right to privacy.

Central to the appeal were Sections 22 and 23 of the Act, which criminalised the publication of false or misleading information and the dissemination of false information likely to cause panic, chaos or damage to a person’s reputation.

BAKE and supporting organisations, including Article 19 East Africa, the Kenya Union of Journalists and the Law Society of Kenya, argued that the provisions used vague terms such as “false”, “misleading”, “panic” and “chaos”, making it difficult for citizens to know what conduct amounted to a criminal offence.

They further contended that the provisions had a chilling effect on free speech and could be abused by authorities to suppress legitimate expression, especially online commentary and criticism of government.

In their analysis, the appellate judges examined whether the contested provisions met the constitutional test under Article 24, which allows the limitation of rights only where such restrictions are reasonable and justifiable in an open and democratic society.

The court observed that legislation “restricting constitutional freedoms must be clear, specific and proportionate to the objective it seeks to achieve.”

While acknowledging the government’s duty to combat cybercrime and protect citizens from harmful online conduct, the judges emphasised that such objectives must be pursued without undermining fundamental freedoms guaranteed under the Constitution.

The court therefore found that certain provisions criminalising the publication of false information online were inconsistent with constitutional protections for freedom of expression.

However, the judges upheld other sections of the Act dealing with offences such as unauthorised access to computer systems, electronic fraud and interception of communications, finding that they were necessary tools in addressing cybercrime.

The decision marks a significant development in Kenya’s digital rights landscape and clarifies the limits of state power in regulating online speech.