Kenya’s top prosecution body is moving to the Supreme Court to challenge a ruling that struck down key provisions of the controversial cybercrimes law, escalating a legal contest over the state’s authority to regulate online speech.
- •The Office of the Director of Public Prosecutions (ODPP) filed a petition contesting a judgment delivered on 6 March by the Court of Appeal, which declared Sections 22 and 23 of the Computer Misuse and Cybercrimes Act unconstitutional.
- •The provisions had sought to criminalize the publication of false or misleading information including content deemed likely to cause panic, chaos, or reputational harm.
- •By invalidating them, the appellate court removed criminal penalties tied to so-called “false publications,” narrowing the scope of offences available to state prosecutors.
“In its petition, the ODPP expresses dissatisfaction with the appellate court’s decision which declared sections 22 and 23 of the Act unconstitutional on grounds of overbreadth. Through the petition, the ODPP seeks to have the Supreme Court overturn the appellate court’s Judgement,” the ODPP said in a statement.
The Court of Appeal’s ruling followed a challenge by civil society groups including the International Commission of Jurists (ICJ) Kenya and the Bloggers Association of Kenya (BAKE), which argued that parts of the law were vague, lacked clear intent requirements, and infringed on constitutional rights such as privacy and freedom of expression.
In its judgment, the appellate court partially allowed the appeal and struck down the contentious sections of the law while upholding the rest of the statute. The judges found the impugned provisions were too broad, warning they could capture individuals who share information without knowing it is false and risk suppressing legitimate expression including opinion, satire, and other forms of journalistic work.
The court also noted that other legal avenues such as civil defamation and laws addressing cohesion and integration already exist to deal with harmful publications without resorting to expansive criminal sanctions.
At the same time, the appellate bench preserved key enforcement powers under the law. Authorities retain the ability to seek court warrants to search and seize computer data, compel service providers to produce subscriber information, and conduct real-time data collection for limited periods, with judges expected to act as safeguards against abuse.
Other provisions, including those addressing child exploitation and cybersquatting, also remain in force, with the court finding their objectives justified.
The dispute now moves to the Supreme Court against a backdrop of broader unease over the direction of Kenya’s cybercrime framework. Amendments to the law have expanded state authority to block websites and applications deemed harmful, empowered a security-led committee to act without court orders, and widened definitions of offences such as cyber harassment.
They also introduced measures targeting emerging threats such as SIM-swap fraud and phishing, while proposals under consideration would require more detailed user registration and expand data collection by service providers.
Officials have framed the changes as necessary to address digital crime and protect national security. Critics and skeptical citizens argue that the vague language and broad powers risk enabling restrictions on online expression and digital mobilization against nefarious state activities.
