The Kenya National Commission on Human Rights (KNCHR) has termed the new law as legally defective and an affront to freedom of expression and the right to privacy.
The government watchdog body appealed to the Executive and Parliament to review and amend the “overbroad” provisions in the law, which they said risk criminalising legitimate criticism and dissent.
Claris Awuor Ogangah, chairperson of the KNCHR at the National Assembly on August 28, 2025.
Photo credit: Dennis Onsongo | Nation Media Group
Appearing before the Senate National Cohesion Committee, the commission, led by its new chairperson Claris Ogangah and Head of Research and Compliance Martin Pepela, maintained that the new legislation does not meet the standards of legality, clarity, and proportionality, contrary to principles of constitutionalism.
Several provisions of the new law, they argued, infringe on several non-derogable rights guaranteed in the Constitution, including freedom of thought and expression as well as the right to privacy.
“By criminalising speech that is deemed offensive, objectionable or undesirable by the State, Kenya jeopardises its compliance with international obligations under various international laws,” said Ms Ogangah.
Sponsored by Wajir East MP Aden Mohamed, the object of the new law was to prohibit the use of electronic media to promote terrorism and extreme religious and cultic practices.
However, the new Act has elicited concern from citizens and institutions, citing its potential to infringe on fundamental rights and freedoms provided under the Constitution.
Wajir East MP Mohamed Aden.
Photo credit: Francis Nderitu | Nation Media Group
The Law Society of Kenya and the Kenya Human Rights Commission filed separate petitions seeking a declaration that several provisions of the Act are in direct violation and are inconsistent with Article 31 of the Constitution and Sections 25 and 27 of the Data Protection Act.
Consequently, the High Court suspended two Sections of the impugned Act, Section 27(1) and (2), pending hearing and determination of the petition.
KNCHR is the latest body to poke holes into the new law, joining a growing list of its opposers.
Pointing out the contentious clauses, the Commission raised concern Clause 3 of the new law which provides that, where it is proved that a website or application promotes unlawful activities, inappropriate sexual content of a minor, terrorism or religious extremism and cultism, issue a directive to render the website or application inaccessible.
According to KNCHR, the amendment is silent on what constitutes unlawful activities, thereby leaving to authorities the discretion of ascertaining the same.
Furthermore, the provision of the law is not explicit on the State agency which will be responsible for proving that a website or application is promoting unlawful activities.
Kenya is among the top 10 African countries as regards incidence of cybercrime.
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Consequently, Mr Pepela said the provision is mischievous, vague and overbroad and creates ambiguity, leaving it to subjective interpretation and implementation.
From the foregoing, he said the amendment undermines the right to fair administrative action as provided for in Article 47 of the Constitution by providing enforcement authorities with unfettered discretion.
“This is dangerous because it undermines the rule of law and creates opportunities for arbitrary or abusive enforcement,” he said.
The commission also had issues with Clause 4 of the Act, which amends Section 27 of the principal Act by inserting the words “or is likely to cause that other person to commit suicide”.
According to the human rights watchdog body, the amendment is vague and overbroad as it provides an opportunity for subjective, arbitrary and/or abusive enforcement.
KNCHR argues that the text and wording of the amendment seeks to criminalise communications that cause or are likely to cause that other person to commit suicide, a move that is unconstitutional when considered alongside the Mental Health Act, 2022.
Section 2 of the Mental Health Act 2022 clearly defines a "person with mental illness" to encompass those exhibiting suicidal thoughts or actions, thus acknowledging suicide as a symptom of mental illness.
However, he said, based on the text of the amendment, it is difficult to ascertain what communication could cause someone to commit suicide, given that suicide causation is dependent on several factors.
Further poking holes, Mr Pepela said the amendment does not provide for psychiatric assessment to ascertain if the communication would be harmful.
“For instance, is it criminal for a mental health advocate to share his/her personal story and experience? How would direct causation be proved in such instances? Would there be a need for psychiatric assessment?” posed Mr Pepela.
He said the amendment also unjustly criminalises consequences of mental health condition, rather than addressing them through care and prevention
The KNCHR also had issues with the phrase “inappropriate sexual content of a minor”, saying the meaning is misleading and legally defective, as it assumes that there is a legal and/or appropriate form of sexual content involving a minor.
He observed that the wording undermines child protection by implying that there can be some forms of sexual content involving children.
“The implications of such wording are dangerous and violate Constitutional rights and freedom of children,” he said.
