Nairobi — The Court of Appeal of Kenya has declared Sections 22 and 23 of the Computer Misuse and Cybercrimes Act unconstitutional, citing vagueness and the risk of criminalising innocent individuals.
A three-judge bench comprising Korir Weldon Kipyegon, Aggrey Muchelule and Patrick Kiage overturned the provisions, arguing that their broad wording could easily be misused.
Under Section 22 of the Act, a person who intentionally publishes false, misleading or fictitious data or misinformation with the intention that it be considered authentic commits an offence punishable by a fine of up to Sh5 million or imprisonment for up to two years, or both.
The law, however, provides that under Article 24 of the Constitution of Kenya, the freedom of expression guaranteed under Article 33 may be limited where publication of false information is likely to propagate war, incite violence, or amount to hate speech and advocacy of hatred.
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Section 23 further states that any person who knowingly publishes false information in print, broadcast or over a computer system that results in panic, chaos or violence among citizens, or damages another person’s reputation, commits an offence punishable by a fine not exceeding Sh5 million or imprisonment for up to 10 years, or both.
However, the appellate judges ruled that the two provisions were overly broad and lacked clear limits.
“Our assessment of Sections 22 and 23 of the Act is that they are so broad, wide, untargeted, akin to unguided missiles, and likely to net innocent citizens,” the bench ruled.
The judges added that the provisions were largely aimed at policing social media activity and could criminalise individuals who share information online without knowledge that it is false.
Last year, President William Ruto signed the Computer Misuse and Cybercrimes (Amendment) Act, 2024 into law following the Gen Z-led protests.
However, the High Court of Kenya had earlier suspended the implementation of Sections 27(1)(b), (c) and (2), which relate to cyber harassment and false information, after critics including the Kenya Human Rights Commission and Reuben Kigame argued that the provisions were vague.
The government had defended the law, saying the amendments were necessary to tackle terrorism, child exploitation, SIM-swap scams and rising cyber fraud.
