Kenya’s High Court rules State cannot block websites without judicial approval

The High Court has declared unconstitutional provisions of the Computer Misuse and Cybercrimes (Amendment) Act that allowed authorities to block websites and online platforms without first obtaining a court order, in a major victory for freedom of expression and media freedom.

Justice Patricia Nyaundi delivered the landmark ruling on Wednesday, finding that the law unlawfully granted the National Computer and Cybercrimes Coordination Committee (NC4) powers to direct internet service providers to make websites, applications and other online platforms inaccessible without judicial oversight.

The judge ruled that the provisions fell short of the constitutional standards required when limiting fundamental rights and freedoms.

According to the judgment, the law handed NC4 sweeping powers to restrict access to digital platforms without sufficient legal safeguards, creating an unjustifiable interference with constitutional rights.

The court found that the provisions infringed on the rights to freedom of expression and media freedom protected under Articles 33 and 34 of the Constitution.

Justice Nyaundi noted that Article 24 of the Constitution requires any limitation of fundamental rights to be reasonable, justifiable and proportionate in an open and democratic society.

The court concluded that the impugned provisions failed to satisfy that constitutional test.

In another significant finding, the High Court also invalidated amendments that broadened the offence of cyber harassment to criminalise communication considered likely to cause another person to commit suicide.

Justice Nyaundi ruled that the provision was overly broad and lacked sufficient legal certainty, warning that it posed a risk to constitutionally protected speech.

The judgment stated that the challenged amendments amounted to an unjustifiable limitation on freedom of expression.

However, the court rejected a separate challenge relating to the right to privacy.

Justice Nyaundi held that the petitioners had not presented the alleged privacy violation with enough precision for the court to determine whether the constitutional right had been infringed.

That aspect of the petition was therefore dismissed.

The ruling marks a significant development in Kenya’s digital rights landscape, reinforcing that restrictions on internet content and access to online platforms must be subjected to judicial scrutiny before they can be enforced.

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