Kenya's Court of Appeal has ruled that certain sections of the 2018 Computer Misuse and Cybercrimes Act are unconstitutional. The decision came in a case brought by the Bloggers Association of Kenya (BAKE). These provisions had been used by the Directorate of Criminal Investigations (DCI) to arrest critics and bloggers accused of spreading false information.
The Court of Appeal delivered its judgment on Friday, March 5, in a case filed by BAKE against several provisions of the act. The association argued that the sections were overly broad and could target journalists, bloggers, and ordinary social media users involved in online communication.
In its ruling issued in Nairobi, the appellate court determined that sections 22 and 23 of the law were unconstitutional because they were worded in a way that risked punishing innocent behavior. The judges noted that the provisions were too wide and lacked precise focus on specific criminal acts, potentially ensnaring individuals who share information without harmful intent.
The court described the sections as akin to 'unguided missiles' in their legal application, warning that they could impact both creators of content and innocent sharers. "In the end, this appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being so broad as to the extent that they are likely to net innocent persons. It is only to this extent that we vary the learned Judge's judgement," the ruling stated in part.
According to the decision, the offenses outlined in these sections were challenging to apply due to an imprecise definition of false information in a digital context where interpretations can vary. The three-judge bench emphasized that freedom of political expression and public discourse must be safeguarded, particularly on public interest matters shared via social media.
Nevertheless, the appellate judges upheld the majority of the cybercrime law's other sections, deeming them to include sufficient protections for constitutional rights while enabling the state to address harmful online activities. The court also found adequate constitutional grounds to retain those provisions, dismissing BAKE's claim that the entire act was unconstitutional.
