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High Court strikes down State powers to block websites
High court.
The government has lost powers to block websites and applications without judicial oversight and to enforce an expanded cyber harassment offence targeting online communication.
This follows High Court’s judgment declaring unconstitutional two provisions of the Computer Misuse and Cybercrimes (Amendment) Act that authorised website blocking and broadened criminal liability for online speech.
Justice Patricia Nyaundi held that the provisions imposed unjustifiable limits on freedom of expression and media freedom, allowed restrictions without judicial oversight and violated the constitutional principle of legality.
“The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship, in the absence of procedural safeguards and evidential thresholds,” said the court in Nairobi on Thursday.
The judgment handed digital rights campaigners and bloggers a significant victory as Kenya grapples with balancing constitutional protections for free expression against efforts to tackle harmful and unlawful online content.
It also comes amid public concern over a series of arrests linked to online posts and the deaths of some social media users whose cases have fuelled debate over freedom of expression and state accountability.
The court struck down Section 6(1)(ja), which empowered the National Computer and Cybercrimes Coordination Committee (NC4) to direct that websites and applications be rendered inaccessible.
NC4) is a multi-agency national body established under the Computer Misuse and Cybercrimes Act to coordinate Kenya's response to cybercrime, bringing together representatives from the ministries responsible for ICT and internal security, the Communications Authority of Kenya, the National Intelligence Service, the Directorate of Criminal Investigations, the Kenya Defence Forces and other key government agencies.
Also invalidated was Section 27(1)(b), which expanded the cyber harassment offence to criminalise online communication likely to cause another person to commit suicide.
"It violates the principle of legality ... which demand clarity, precision, foreseeability in criminal norms,” said the court. It found that the new offence rested on speculative and subjective standards, failed to distinguish between actual and hypothetical harm, and violated the constitutional principle of legality because criminal offences must be clear, precise and foreseeable.
The court held that the website-blocking provision unlawfully restricted constitutional rights without judicial oversight, while the cyber harassment amendment was too vague and failed the constitutional principle of legality.
The court found the provisions failed the Constitution's test for limiting fundamental rights, allowed restrictions without judicial oversight and offended the principle of legality, although it rejected other parts of the petition.
The judgment partially allowed a constitutional petition filed by the Law Society of Kenya (LSK) against the Attorney General, the Communications Authority of Kenya and other state agencies challenging the amendments enacted by Parliament.
The petitioners argued the changes gave state authorities sweeping powers over online speech, undermined freedom of expression and media freedom, and violated constitutional safeguards.
“The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship in the absence of procedural safeguards and evidential thresholds. The provision invites arbitrary enforcement and provides a chilling effect on legitimate expression,” LSK said in regard to Section 27(1)(b).
The court, however, upheld Parliament's legislative process, rejecting claims that the law was passed without adequate public participation.
The petitioners had argued that the amendment process was rushed, failed to incorporate public views and that key changes were introduced through a supplementary order paper that caught lawmakers by surprise.
The Attorney General disputed those claims, saying the bill was published before being referred to the National Assembly's Departmental Committee on Communication, Information and Innovation.
The State counsels told the court the committee invited submissions from the public and stakeholders, considered the views received and tabled its report before Parliament debated and passed the legislation.
The court agreed with the respondents on that issue, finding Parliament had complied with its constitutional obligation to facilitate meaningful public participation.
It said the record showed the public was given a genuine opportunity to present views and that legislators considered those submissions before enacting the law.
The state defended the amendment, arguing it pursued legitimate objectives including protecting children from sexual exploitation, combating terrorism and suppressing unlawful online activities.
It maintained the limitation of constitutional rights was justified under Article 24 because the committee could only act where prohibited content had been proved.
Justice Nyaundi rejected that argument, holding that the amendment created a parallel administrative process allowing fundamental rights to be restricted without judicial supervision.
"The provision empowers the committee to determine that a website or application is offensive and then proceed to issue a directive to render the website or application inaccessible," the court said.
"The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship, in the absence of procedural safeguards and evidential thresholds,” it added.
The court held that the state had failed to demonstrate the limitation of constitutional rights was necessary or represented the least restrictive means available, as required under Article 24 of the Constitution.
In relation to the amendment to Section 27, the court said the provision introduced "a speculative, indeterminate, and wholly subjective basis for criminal liability" and lacked objective standards capable of satisfying the constitutional principle of legality.
"Its standard is untethered from objective criteria and collapses the distinction between demonstrable harm and hypothetical psychological impact," the court said.
It concluded that the offence was too vague to survive constitutional scrutiny because criminal laws must be clear, precise and foreseeable.
The court, however, dismissed a separate challenge alleging that the amendments violated the constitutional right to privacy and the Data Protection Act.
It held that the petitioners had failed to identify the specific provisions said to be inconsistent with the Constitution, meaning that aspect of the case did not meet the required legal threshold.
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