NAIROBI, Kenya Jul 2 – The High Court has declared unconstitutional key provisions of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 that granted a State committee powers to block websites and online platforms without prior approval from the courts.
In a landmark ruling, Justice Patricia Mande struck down Section 6(1)(j)(a) of the law, finding that it unlawfully expanded the powers of the National Computer and Cybercrimes Coordination Committee and violated constitutional guarantees on freedom of expression, media freedom, and freedom of religion.
The disputed provision had authorised the committee to instruct internet service providers to restrict access to websites, online applications, and digital platforms suspected of publishing or distributing content associated with terrorism, violent extremism, child sexual exploitation, and other illegal activities.
However, the court ruled that the law improperly allowed an administrative body to decide what online content was objectionable and to enforce restrictions without independent judicial scrutiny.
Justice Mande held that the provision effectively introduced prior censorship, which she described as one of the harshest limitations on freedom of expression, while also lacking adequate safeguards to prevent abuse of power.
The judge noted that the legislation did not provide clear procedures, evidentiary standards, or oversight mechanisms before websites could be blocked, raising the risk of arbitrary enforcement.
The State had argued that court supervision could be inferred from the broader framework of the law, but the court rejected that position, observing that Parliament had separately created other enforcement provisions that specifically required judicial involvement.
According to Justice Mande, the omission of court oversight in the contested section showed that the committee was intended to exercise the powers independently.
The court further found that the government failed to justify the limitation of constitutional rights under Article 24 of the Constitution, which requires restrictions on fundamental freedoms to be lawful, reasonable, proportionate, and justifiable in an open and democratic society.
Justice Mande warned that allowing State agencies to block online platforms without judicial approval could have a chilling effect on digital expression by encouraging self-censorship among internet users, media organisations, and online publishers who fear possible sanctions.
In the same ruling, the court also invalidated Section 27(1)(b) of the amended law, which criminalised communication deemed likely to cause another person to commit suicide.
The judge ruled that the provision was unconstitutional because it was vague, overly broad, and failed to clearly define the conduct that would attract criminal liability.
She held that criminal sanctions based on communication merely considered “likely” to result in suicide relied on speculative and subjective standards, contrary to the constitutional principle requiring criminal offences to be clearly defined in law.
While nullifying the two contested provisions, the court dismissed claims challenging the legislative process used to pass the amendments.
Justice Mande found that the National Assembly had conducted sufficient public participation before enacting the law and ruled that Senate approval was not required because the legislation did not directly concern county governments.
The consolidated petitions therefore succeeded partially, with the court striking down the provisions on website blocking without court orders and communication likely to lead to suicide, while leaving the remaining sections of the amended cybercrimes law intact.
