For years, two sections of Kenya’s Computer Misuse and Cybercrime Act sat on the books like a loaded gun pointed at anyone who dared publish something the wrong person didn’t like. Today, the Court of Appeal changed that.
Sections 22 and 23 of the Act have been declared unconstitutional. The ruling is a direct win for free expression in Kenya, and it’s been a long time coming.
The Bloggers Association of Kenya (BAKE) brought the fight. They argued that both sections placed restrictions on speech that failed to meet the threshold set by Article 24 of the Constitution, which requires that any limitation on a right be reasonable, justifiable, and proportionate.
The High Court disagreed in February 2020 and upheld the sections. BAKE appealed, and today, the Court of Appeal sided with them.
So what exactly were these sections doing?
Section 22 made it a criminal offense to intentionally publish information that is false, misleading, or fictitious with the intent that it be taken as real.
You didn’t even need to profit from it. Just publishing it was enough. The penalty was a fine of up to KES 5 million, two years in prison, or both.
Section 23 went further and targeted the publication of false information that could cause panic, chaos, or violence. It applied across all platforms, including print, broadcast, and online.
READ: Government Loses Power to Block Social Media After Court Ruling
The punishment here was considerably harsher, with up to ten years in prison, a KES 5 million fine, or both.
On paper, both sections sound like reasonable tools to fight misinformation. In practice, laws worded this broadly rarely stay in their lane. “False information” is a flexible accusation.
It can be weaponized against satire, criticism, investigative reporting, or opinion – basically anything a powerful person wants gone. The vagueness of the language is precisely what made these sections dangerous and precisely what made them constitutionally suspect.
The Court of Appeal has now confirmed what BAKE argued from the start: these sections crossed a line. They didn’t just regulate harmful speech.
They also created conditions where almost any speech could be criminalized, which is the opposite of what a constitutional democracy is supposed to allow.
Bloggers, journalists, and everyday people on social media have now been saved by this ruling. You could previously be arrested, charged, and imprisoned for publishing something that someone else decided was false.
READ: Kenya’s New Cybercrime Law Sparks Fear of Digital Censorship
That risk, even when prosecutions didn’t follow through, was enough to make people think twice before posting. That chilling effect on speech is now one step closer to being lifted.
The fight isn’t entirely over. Other provisions in the Cybercrime Act remain, and how courts interpret and apply the law going forward will matter.
