Kenya’s Court of Appeal has declared the country’s most controversial “fake news” laws unconstitutional, freeing bloggers, journalists, and ordinary social media users from the threat of jail for sharing unverified information online.
The three-judge bench — Justices Patrick O. Kiage, Aggrey O. Muchelule, and Weldon Korir — unanimously struck down Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018, branding them vague, overbroad, and dangerous “unguided missiles” that could ensnare innocent citizens while chilling legitimate speech.
The ruling, delivered today, overturns a 2020 High Court decision by Justice James Makau that had upheld the entire Act. It marks a major triumph for the Bloggers Association of Kenya (BAKE), which led the appeal alongside civil society groups including Article 19 Eastern Africa and the Kenya Union of Journalists.
Section 22 criminalized the intentional publication of false or misleading data, while Section 23 targeted “fake news” likely to cause panic, chaos, violence, or reputational damage. Offenders faced fines of up to Sh5 million, prison terms of up to 10 years, or both. The judges ruled these provisions failed the constitutional test of clarity and unjustifiably limited freedoms of expression and the media under Articles 33 and 34.
“These provisions are so broad, wide, untargeted, akin to unguided missiles, and likely to net innocent persons,” the bench stated. They risk criminalizing satire, opinions, journalistic inaccuracies, and even the mere forwarding of messages without knowledge of their falsity. What is deemed “false” today, the court observed, might prove true tomorrow — a chilling effect that could silence dissent and innovation in the digital age.
The judges noted that existing laws — including the National Cohesion and Integration Act and civil defamation remedies — already address harmful speech without resorting to such draconian criminal sanctions.
BAKE chairperson Kennedy Kachwanya hailed the decision as transformative. “This is not just a win for content creators or journalists. It is a win for every Kenyan who uses the internet to speak truth to power,” he said. BAKE’s lawyer, Mercy Mutemi, added that the scrapped offences “have been weaponized time and time again to target journalists, content creators, members of the public and anyone who dares to speak truth to power.”
Yet the victory is only partial. The court upheld the bulk of the 2018 Act, including tough provisions on child pornography (Section 24), cybersquatting (Section 28), and cyber harassment (Section 27). It also preserved the police’s sweeping investigative powers under Sections 48–53 — search and seizure warrants, production orders for subscriber data, and real-time surveillance of communications for up to six months.
However, the judges issued a stern warning: these powers are “capable of abuse, including potential misuse for political purposes.” Courts must act as “vigilant gatekeepers,” demanding precise justification, strict time limits, and clear protocols for storing and destroying data. “Cyberspace cannot be a law-free environment, a virtual jungle or wild west,” the bench emphasised, but neither can it become a surveillance state.
The court further ruled that terms such as “knowingly,” “intentionally,” and “without authorisation” provide sufficient mens rea (guilty mind) safeguards, rejecting BAKE’s argument that the law was impermissibly vague on criminal intent.
For Kenya’s vibrant digital ecosystem — where millions rely on social media to hold power to account — the implications are profound. The scrapped sections had been weaponized especially after the 2024 anti-government protests, leading to arrests of critics and even the tragic death of blogger Albert Ojwang in police custody in 2025. No longer will sharing a dubious WhatsApp forward land someone in court facing a decade behind bars.
Civil defamation suits and other targeted laws remain available for those harmed by falsehoods. Privacy, meanwhile, stays conditional: the state can still access your data — but only under rigorous judicial scrutiny.
In the words of the bench, Parliament has every right to regulate the internet’s darker corners, but not at the expense of the Constitution’s core promise of free speech. Today, that promise just got stronger. Kenya’s bloggers — and every Kenyan with a smartphone — can breathe a little easier. The unguided missiles have been disarmed.
