Kenyan journalists, bloggers, and lawyers made an impassioned plea before the Court of Appeal on Wednesday to strike down the controversial Computer Misuse and Cybercrimes Act, arguing that it has become a tool for state suppression of free speech and digital rights.
The Bloggers Association of Kenya (BAKE), together with the Law Society of Kenya (LSK) and the Kenya Union of Journalists (KUJ), told the judges that enforcement of the law has had dire consequences—including arrests, harassment and even deaths linked to online expression.
They cited examples such as the arrest of bloggers for “fake news,” detention of an author over a presidential biography, targeting of a software developer who built a Finance Bill monitoring tool, and the fatal arrest of teacher Albert Ojwang, allegedly over a social media post.
Meanwhile, the Attorney-General, the Director of Public Prosecutions, and the National Assembly urged the court to uphold a 2020 High Court ruling that declared the law constitutional.
“There is no good reason to overturn the judgment. Any law is made to regulate human activity, and the Computer Misuse and Cybercrimes Act, 2018 came with the development of technology,” said lead lawyer Paul Nyamodi, representing the respondents.
“Right to freedom of expression does not mean infringing on the rights of others. Libel cannot be constitutionally protected speech,” he added, asking the judges to dismiss the appeal.
Lawyer Paul Nyamodi, during his submissions at Milimani High Court on January 17, 2025.
Photo credit: File| Nation Media Group
In its 2020 judgment, the High Court found that the Act was valid, did not violate fundamental rights, and was justified under Article 24 of the Constitution.
“I find that the impugned sections contain adequate safeguards to ensure the rights of the individual are well balanced as against the rights of the public in the investigation of offences under the Act,” Justice James Makau found while dismissing a petition by BAKE.
But on appeal, LSK, BAKE, and KUJ argued that the law is unconstitutional as it infringes on freedoms of expression, privacy, and judicial independence.
“Since its operationalisation, the Computer Misuse and Cybercrimes Act has become a weapon for the ruling elite. We have witnessed its abuse: bloggers arrested for ‘fake news,’ an author detained for writing a biography on the president’s daughter, a software developer targeted for building a tool that enabled citizens to track the Finance Bill—the list is long,” the blogger’s assoctaion’ lawyer Mercy Mutemi told the bench of Justices Patrick Kiage, Aggrey Muchelule and Weldon Korir.
She pointed to the death of teacher Ojwang while in police custody as the “most egregious example,” saying the Act’s expansive powers gave police dangerous access to personal data amid rising cases of abductions.
Ms Mutemi also cited parliamentary records suggesting that the law was designed to shield politicians from online criticism, calling it a “panic response” to dissent rather than a genuine cybersecurity measure.
She was supported by lawyers Dudley Ochiel, Malidzo Nyawa and Dennis Kiprono, representing LSK, KUJ, and Article 19 East Africa, who said the law has been weaponised for more than seven years.
“There are less restrictive alternatives—including civil defamation suits—that can protect reputations without criminalising speech,” argued Mr Ochiel.
The appellants also faulted the law for lack of public participation, saying significant amendments introducing new “content offences” were added at the committee stage of Parliament without further consultation.
They further challenged Section 50, which makes it mandatory for courts to grant police warrants to access digital information once officers claim to have “reasonable grounds.”
“Judicial scrutiny has been undermined. Courts are reduced to rubber stamps,” Ms Mutemi argued.
Among the 13 criminal offences challenged are: publication of false information, unauthorized interception, unauthorized interference, child pornography, cyber harassment, cybersquatting, unlawful destruction of electronic messages, misdirection of messages, inducement to deliver electronic messages, intentional withholding of messages, fraudulent use of data, false e-instructions, and failure by employees to relinquish access codes.
Besides nullifying the law, the appellants want the Court of Appeal to issue orders discharging all ongoing cases under the Act and halting any surveillance of social media users.
The judges said they will deliver their judgment on February 27, 2026.
