NAIROBI, Kenya — The High Court has declared unconstitutional key provisions of the Computer Misuse and Cybercrimes (Amendment) Act that gave the State powers to block websites and online applications without judicial oversight, in a landmark ruling reinforcing constitutional protections for freedom of expression and media freedom.
In the judgment delivered on Wednesday, Justice Patricia Nyaundi ruled that the impugned provisions unlawfully empowered the National Computer and Cybercrimes Coordination Committee (NC4) to order internet service providers to render websites, applications and other online platforms inaccessible without first obtaining a court order.
The judge held that the provisions failed to meet the constitutional threshold for limiting fundamental rights and freedoms guaranteed under the Constitution.
Court Finds Law Unconstitutional
Justice Nyaundi found that the law conferred excessive powers on the National Computer and Cybercrimes Coordination Committee, allowing it to restrict access to digital platforms without adequate legal safeguards.
The court held that such powers unjustifiably infringed on the rights to freedom of expression and media freedom protected under Articles 33 and 34 of the Constitution.
According to the judgment, limitations on constitutional rights must satisfy the test set out under Article 24, which requires any restriction to be reasonable, justifiable and proportionate in an open and democratic society.
The court found that the challenged provisions did not meet that constitutional standard.
Cyber Harassment Provision Also Invalidated
The High Court also struck down amendments that expanded the offence of cyber harassment to criminalise communication deemed likely to cause another person to commit suicide.
Justice Nyaundi ruled that the provision was overly broad and failed to provide sufficient legal certainty, raising concerns about its potential impact on constitutionally protected speech.
The judgment concluded that the impugned provisions created an unjustifiable limitation on freedom of expression.
Privacy Challenge Dismissed
However, the court dismissed a separate challenge relating to the right to privacy.
Justice Nyaundi held that the petitioners had not pleaded the alleged violation with sufficient precision to enable the court to determine whether the constitutional right to privacy had been infringed.
As a result, that aspect of the petition was rejected.
The ruling reinforces the principle that restrictions on internet content and access to digital platforms must be subjected to judicial scrutiny before implementation.