Justice Kizito Magare suspended the panel of experts’ mandate and scheduled the case for further directions on October 6
A lawyer has petitioned the High Court to quash a proposed law that seeks to give the State additional powers to control Kenya’s digital space, particularly targeting groups and individuals suspected of being religious extremists or cults.
Mr Evance Ndong argues that the proposal, contained in the Computer Misuse and Cybercrimes (Amendment) Bill, 2024, is vague since it does not define the phrase “extreme religious and cultic practices.”
“The danger is acute in that by leaving the meaning of ‘extreme’ to the whims of the State and its organs, the Bill hands unrestrained discretion to the State to silence legitimate religious expression and worship,” Mr Ndong says in the petition filed at the High Court in Nairobi.
The proposed amendment, sponsored by Wajir East MP Aden Daudi Mohamed, seeks to expand the mandate of the National Computer and Cybercrimes Coordination Committee (NC4) to block websites and mobile applications in Kenya if they are found to promote terrorism, extremist religious ideologies, or cultic practices.
It targets individuals and organisations using digital platforms to spread messages deemed unsafe to Kenyans.
The Bill further proposes giving the committee powers to issue directives for websites and mobile applications to be blocked if they host or promote illegal activities, including extremist content.
The committee is chaired by the Principal Secretary for Internal Security, with membership drawn from various government agencies, including the National Intelligence Service, National Police Service, Office of the Attorney-General and the Kenya Defence Forces.
Mr Ndong’s petition adds to concerns already raised by civil society groups that the Bill’s broad scope could threaten freedom of expression and digital rights in Kenya.
He argues that the vague language in the Bill could be exploited by the State to suppress critics and shrink civic space.
According to him, many genuine religious organisations and individuals risk being silenced if the legislation is passed.
He further contends that existing laws already provide sufficient safeguards against unlawful activities arising from the exercise of freedom of worship.
“If anything, the Constitution cannot countenance an attempt to whimsically determine beliefs based on flip-flopping, nonexistent criteria only known to the State on what amounts to a cult. This is a direct target on mainstream churches, which is a danger to the Kenyan democratic space,” Mr Ndong argues, although the contested Bill does not specifically mention mainstream churches.
The lawyer also claims that the Bill duplicates roles, given that the Constitution already mandates investigative agencies such as the National Police Service and the Director of Public Prosecutions to handle suspected cases of extremism.
“Beyond vagueness, the Bill also encroaches on established constitutional and statutory mandates. By granting the commtee censorship powers, the Bill arrogates to an executive committee functions already allocated to independent constitutional bodies,” he says.
Mr Ndong maintains that issues of incitement, extremism, or unlawful conduct fall within the investigative remit of the police under Article 245 of the Constitution, while prosecutions lie with the DPP under Article 157.
He argues that judicial scrutiny, not administrative fiat, is the constitutional safeguard in matters restricting rights. Allowing the committee to wield censorship powers, he says, would merge investigative, adjudicative, and enforcement roles into a single executive body — undermining separation of powers and checks and balances.
He is seeking a declaration that the entire Computer Misuse and Cybercrimes (Amendment) Bill, 2024 is unconstitutional for violating the principle of legal certainty in criminal law and the right to a fair hearing under Articles 49 and 50 of the Constitution.
While acknowledging that regulation of terrorism or pornography may be constitutionally permissible, Mr Ndong insists that the undefined and overly broad phrase “extreme religious and cultic practices” makes the Bill impermissibly vague.
“The Constitution demands that where criminal sanctions and punitive measures are contemplated, the principle of legal certainty must be strictly observed. Citizens must be able to predict, with reasonable clarity, what conduct is proscribed. Vagueness offends Article 50 of the Constitution on fair hearing because an accused cannot mount a proper defence against indeterminate allegations,” he says.
The petition is awaiting hearing directions. Mr Ndong has named the Attorney-General, the National Assembly, and the Senate as respondents. The Bill is currently before the National Assembly for debate.
