The High Court has said internet is a medium that facilitates the enjoyment of constitutional rights and fundamental freedoms and is protected within that framework.
The High Court ruled that internet access is not expressly provided for as a fundamental right in the constitution and issuing such an absolute declaration would be arbitrarily and indefensible.
In a judgment last week, the court further said by dint of Article 20 (3) (a), the courts have no authority under the guise of interpretation to create constitutional rights.
“For reasons aforesaid, this Court is not persuaded that the declaration sought by the Petitioner to have access to internet declared to be a fundamental right is legally tenable is thus rejected,” said the court.
The court added that internet is a medium that facilitates the enjoyment of constitutional rights and fundamental freedoms and is protected within that framework.
In the matter, Kituo Cha Sheria and Geoffrey Maina Mwangi had moved to court seeking a number of declarations, among them that internet access should be declared a fundamental right.
According to the lobby group, the government has over the years adopted online systems for service delivery, predominantly over internet platforms.
The lobby added that some of the government services were exclusively offered online and despite the great strides in the area, the government and its agencies have failed to provide the public with meaningful access to the internet to enable them benefit from the services.
The petitioners contended that the reality is that most of the Kenyan population lack the necessary ICT skills, lack infrastructure to access the internet, including laptops, desktop computers, phones and tablets. Additionally, many have no access, or have limited access and cannot afford internet services.
Disadvantaging majority of population
The cited a range of services including lodging applications for registration of marriages, various licenses, student’s selection, ministry training projections and information of technical and vocational education and training management information system.
Mr Mwangi claims that he was evicted from his parcel of land in Nairobi in November 2021 and sought assistance from Kituo Cha Sheria.
And when he visited the Ministry of Lands offices with a letter prepared by the organisation, he was directed to make an application online.
Mr Mwangi revealed that he did not have an email address to make application online and he was forced to go to a cybercafé where he was charged Sh3,000 for the services.
The petitioners argued that the government’s decision was disadvantaging a majority of the population, especially those in rural areas and marginalized groups who do not have access to internet or possess the required skills.
They faulted the government for making the transition without setting up ICT infrastructure in the whole country, educating and training to people to be able to access these services online.
The government highlighted steps taken over the years in terms of ICT including establishing satellite offices, in addition to its presence in 47 Huduma Centers across the country.
The court heard that the centres offer comprehensive customer service both in person and digitized services.
In the decision, the court said it was undeniable that access to internet has transformed and enhanced the enjoyment of rights and fundamental freedoms such as the freedom of expression, access to information, education, public participation and governance and also socio-economic rights in a transformative way.
“Internet access is thus an essential catalyst that has greatly broadened and enhanced the enjoyment of the existing fundamental rights,” said the court.
Low internet penetration
The court said the petition was founded on the basis that the government was exclusively offering government services through the online platform thereby disadvantaging a large population in rural areas and marginalized communities that have no access to internet.
The court said there was no demonstration that there was policy shift by government or its agencies that completely stopped offering its service to the public by physical means.
“Moreover, while the Petitioner complained of low internet penetration, the respondents were able to demonstrate that they were taking positive steps to gradually increase the coverage by taking appropriate measures,” the court said.
The court added that as long as both physical services continue to be rendered to the areas not reached and to those that have challenges in using the internet, there was nothing wrong with the gradual implementation as given the cost implication, the only way to tap on this revolutionary development is through progressive realisation.
“It is my finding that this Petition lacks merit, is misconceived and I thus dismiss the same in entirety with no orders as to costs,” said the court.
