Kenya’s High Court has declared unconstitutional a controversial provision of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 that allowed a State committee to order the blocking of websites and online applications without first obtaining approval from a court.
In a judgment delivered on Thursday, Justice Patricia Mande ruled that the law gave sweeping censorship powers to an administrative body while failing to protect fundamental constitutional rights.
The decision marks a significant victory for advocates of digital rights and freedom of expression, reinforcing the principle that restrictions on online speech must be subject to judicial oversight.
At the centre of the case was Section 6(1)(j)(a) of the amended law. The provision authorised the National Computer and Cybercrimes Coordination Committee to direct internet service providers to block access to websites and applications believed to contain prohibited material linked to unlawful activities, terrorism, violent extremism, child sexual exploitation and other offences.
The court found that the committee was effectively empowered to decide whether online content should be restricted without first presenting evidence before a judge.
“The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship, in the absence of procedural safeguards and evidential thresholds,” Justice Patricia Mande said.
The State had argued that judicial oversight could be read into the legislation. The court disagreed, noting that Parliament had already created a separate enforcement mechanism within the Act that expressly involved court supervision.
Justice Mande found that the disputed provision instead established a parallel process, allowing authorities to limit constitutional rights without independent judicial scrutiny.
The judgment also examined whether the restriction met the standards set out under Article 24 of the Constitution, which permits limitations on fundamental rights only when they are lawful, reasonable and necessary in a democratic society.
According to the court, the State failed to demonstrate that the provision satisfied those constitutional requirements.
“The State has not discharged its burden to show that the limitation is both necessary and the least restrictive means available,” the judge ruled.
The court further warned that allowing an administrative committee to block online platforms before any judicial determination created a serious risk of arbitrary enforcement and could discourage legitimate public debate.
Justice Mande said the law was likely to encourage self-censorship, with individuals and digital platforms choosing silence rather than risking sanctions.
“Such anticipatory silence is antithetical to the constitutional commitment to a vibrant and uninhibited marketplace of ideas,” she said.
The court also struck down Section 27(1)(b) of the amendment, which made it a criminal offence to communicate in a manner considered likely to cause another person to take their own life.
Justice Mande held that the wording was too vague and relied on speculative standards that failed to clearly define criminal conduct.
She ruled that imposing criminal liability based on communication merely “likely to cause” suicide breached the constitutional principle that criminal offences must be clearly defined.
“In the circumstances, the only proper conclusion is that Section 27(1)(b) of the Computer Misuse and Cyber Crimes Amendment Act, 2025 is unconstitutional, invalid and of no legal effect,” she said.
However, not all aspects of the constitutional challenge succeeded.
The court dismissed claims that Parliament failed to conduct adequate public participation before passing the amendments, finding that members of the public had been given a reasonable opportunity to submit their views.
Justice Mande also rejected arguments that the Senate should have participated in the legislative process, ruling that the amendments did not concern county governments and therefore did not require Senate approval.
In the end, the High Court upheld only part of the petitions, declaring the provisions on website blocking without court approval and communication deemed likely to cause suicide unconstitutional, while leaving the remainder of the amendments intact.
The ruling is expected to shape the future of online regulation in Kenya by reaffirming that efforts to combat cybercrime must remain consistent with constitutional protections for freedom of expression, media freedom and due process.
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