The Court of Appeal of Kenya has ruled that publishing false information should not automatically be treated as a criminal offence, declaring two sections of the Computer Misuse and Cybercrimes Act unconstitutional.
In a judgment delivered by a three-judge bench comprising Patrick Omwenga Kiage, Aggrey Otsyula Muchelule and Weldon Korir, the court ruled that Sections 22 and 23 of the Act are too broad and could wrongly punish innocent people.
The two sections had criminalised the intentional publication of false or misleading information online. Under the law, offenders could face fines of up to Ksh.5 million or prison sentences of up to 10 years depending on the offence.
The case was filed by the Bloggers Association of Kenya (BAKE), which challenged several parts of the law, arguing that they violated constitutional rights such as freedom of expression, privacy and fair trial.
Court’s Key Findings
The Court of Appeal partly agreed with BAKE and ruled that the two sections could criminalise people even when there is no clear harm caused by the information published. Because of this, the judges declared them unconstitutional.
However, the court upheld most of the other provisions of the law, saying Parliament has the authority to regulate online conduct and protect the public from cybercrimes such as harassment, fraud and online abuse.
The judges stressed that cyberspace cannot operate without legal rules, noting that the internet should not become a place where criminal activities go unpunished.
Guidance on Use of the Law
The court also advised investigators and courts to apply the law carefully, especially when using surveillance or interception powers. Authorities must clearly state the offence under investigation and explain how the collected data will be used and stored.
The judges further warned that cybercrime laws should not be misused for political purposes, urging courts to carefully review applications related to digital surveillance or online investigations.
The ruling is considered a major decision for digital rights and freedom of expression in Kenya, balancing the need to protect citizens from cybercrime while safeguarding constitutional freedoms.
