The Court of Appeal has delivered a decisive blow to the state’s ability to police online speech. On Friday, a three-judge bench effectively dismantled key pillars of the Computer Misuse and Cybercrimes Act (CMCA) of 2018, marking a significant victory for journalists, activists, and the general public.
The ruling comes after years of legal friction. When the CMCA was first signed into law in 2018, it was met with immediate backlash from civil society groups who viewed it as a draconian tool designed to silence government critics under the guise of national security. The Bloggers Association of Kenya (BAKE), alongside the Law Society of Kenya and the Kenya Union of Journalists, spearheaded a long-standing petition arguing that 26 sections of the Act were dangerously vague and overbroad.
Justice Patrick O. Kiage, Justice Aggrey Muchelule, and Justice Weldon Kipyegon Korir specifically targeted Sections 22 and 23, which criminalized the publication of “false information.” The bench ruled that these provisions failed the constitutional test of clarity, noting that they infringed upon the fundamental freedoms of expression and the media as enshrined in Articles 33 and 34 of the Kenyan Constitution.
“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,” said Kennedy Kachwanya, Chairperson of BAKE. “The court has affirmed that the internet is a space for accountability, not a tool for state-sponsored intimidation.”
Mercy Mutemi, the lead counsel for BAKE, hailed the moment as a pivotal correction of a law that has been “weaponized time and time again” to target those speaking truth to power. Mutemi went further to call upon the Office of the Director of Public Prosecutions to immediately drop all charges against individuals currently being prosecuted under these now-unconstitutional sections.
However, the mood remains bittersweet for many advocates. While the court struck down the “fake news” clauses, it declined to invalidate the Act’s investigation procedures. Critics argue these procedures allow for mass surveillance, a concern that peaked during the civil unrest and protests seen in June. Demas Kiprono, Executive Director of ICJ Kenya, also expressed disappointment over the retention of Section 27, which carries heavy penalties that many believe are disproportionate and intended to chill digital civic space.
“ This is bittersweet. The retention of Section 27, which we believe is not only overbroad and vague but grossly disproportionate in terms of penalties, requires us to consider further legal intervention to safeguard digital civic space for Kenyans,”. he said.
As the dust settles on this historic ruling, the petitioners have signaled that the legal battle is far from over. With concerns regarding privacy and the remaining sections of the Act still looming, the coalition is currently reviewing the judgment with an eye toward the Supreme Court.
Go to TECHTRENDSKE.co.ke for more tech and business news from the African continent and across the world.
Follow us on WhatsApp, Telegram, Twitter, and Facebook, or subscribe to our weekly newsletter to ensure you don’t miss out on any future updates. Send tips to editorial@techtrendsmedia.co.ke
