The High Court has ruled that access to the internet is not a fundamental human right, rejecting a public interest petition that sought to compel the government to guarantee universal connectivity and preserve manual alternatives to digital public services.
- •The case was brought in 2022 by the Legal Advice Centre, known as Kituo Cha Sheria, alongside a Nairobi resident named Geoffrey Maina Mwangi, who accused the state of excluding millions of Kenyans through its rapid digitization of services.
- •The petitioners asked the Court to declare internet access a constitutional entitlement, to order nationwide digital literacy programs, and to compel the government to provide alternative physical channels for every essential service.
- •Justice Lawrence Mugambi delivered the ruling, in the sprawling case that involved more than thirty state agencies, where he ruled that the Constitution does not recognize internet access as an independent right.
“It is unrealistic to expect instant internet coverage throughout the country given the cost implication. Moreover, I would also think that it is unreasonable to suggest that there should be absolute suspension of government services offered through the internet platform until such a time when the entire country will have been covered,” Justice Mugambi stated.
He reasoned that while the internet has become indispensable for communication, governance, and commerce, it remains a medium that facilitates existing rights such as freedom of expression and access to information, rather than being a standalone constitutional right in itself.
“This Court is not persuaded that the declaration sought by the Petitioner to have access to the internet be declared to be a fundamental right is legally tenable is thus rejected. The Internet is a medium that facilitates the enjoyment of constitutional rights and fundamental freedoms and is protected within that framework,” Justice Mugambi said.
Is the State Outpacing its Populace?
The petitioners argued that the migration of government transactions to online platforms under the Vision 2030 development plan had left behind those without access to broadband, computers, or the skills to navigate online systems.
In their filings, the petitioners described a country divided by connectivity and cited data from the national statistics bureau showing that less than 12% of rural residents and only about 40% of urban residents have internet access.
They said government portals including business registration, marriage licensing, tax filing, and land searches had become the default channel for essential services, forcing many citizens to pay intermediaries to help them transact online.
In court papers, Mwangi recounted his own ordeal navigating the digital bureaucracy. When intruders attempted to seize his Nairobi plot, he sought help from Kituo Cha Sheria to obtain a land search. At the Lands office, officials told him the process had moved online.
He had no email, no computer skills, and no money to hire help. Staff offered to file the application for KSh 5,000, money he did not have, forcing him to turn to a cybercafé that charged KSh 3,000 to complete the task.
Months later, he finally received the certificate, dated nearly half a year earlier. His story, he said, reflected the quiet indignity faced by Kenyans locked out of essential public services by a government racing ahead into the digital age without the rest of the country trailing after it.
The conjoined petition portrayed the country’s eagerness for digital transformation as a new form of inequality that discriminates against the poor, the elderly, and the illiterate.
The petitioners urged the Court to read the right to internet access into the constitutional guarantees of equality, human dignity, and access to justice, arguing that citizens cannot enjoy their rights if they cannot reach the digital platforms through which the government now operates.
What the Gov’t Challenged…
State lawyers countered that the petition overstated the problem. The Attorney General’s office described digitization as a deliberate policy aimed at efficiency and transparency, not exclusion.
Ministries and agencies lined up to demonstrate that hybrid access remains intact, with physical offices, Huduma Centres, and mobile units continuing to serve citizens who lack internet connections.
The ICT Authority detailed that billions of shillings have been invested in national fiber networks, public Wi-Fi hotspots, and digital learning devices distributed across schools. It said the government was already expanding connectivity through partnerships with Telkom Kenya, Huawei, and global tech firms, and accused the petitioners of ignoring these efforts in expanding connectivity.
The Kenya Revenue Authority (KRA) said it maintains walk-in help desks and mobile tax units. The Public Service Commission (PSC) said job applicants may still hand-deliver applications or post them by mail.
The Ministry of Education insisted its operations remain decentralized through county and school offices. County governments dismissed the lawsuit as speculative, saying no formal complaints had been made by residents unable to access their services.
Connectivity is a Necessity, But is it a Right?
Supporting the Court as amicus curiae, Ideate Tech Policy Africa urged a broader reading of the Constitution to accommodate technological change. It argued that Kenya’s judiciary should adopt a “living Constitution” approach, treating connectivity as a modern necessity akin to education or clean water.
The organization noted that the United Nations and the African Commission on Human and Peoples’ Rights have both linked internet access to freedom of expression, and that courts in India, Costa Rica, and West Africa have recognized the internet as essential to the exercise of fundamental rights.
Justice Mugambi disagreed in a methodical approach that blended caution with pragmatism, noting that the Bill of Rights must evolve through interpretation, not invention. In stating Article 19 of the Constitution, the judge agreed that the law allows recognition of other rights but does not empower courts to create new ones.
While acknowledging that the internet has transformed how citizens exercise their freedoms, the judge said its protection must arise within the framework of existing rights, not as a standalone entitlement.
