NAIROBI, Kenya Aug 27 – The State has moved to the Supreme Court seeking to overturn a Court of Appeal decision that declared two provisions of Kenya’s Computer Misuse and Cybercrimes Act unconstitutional.
Through the Speaker of the National Assembly, the State is challenging the decision affecting Sections 22 and 23 of the Act, which relate to the publication and dissemination of false information.
The State wants the Supreme Court to restore the provisions, arguing that the Court of Appeal did not sufficiently consider the safeguards contained in the law before striking them down.
At the centre of the appeal is the balance between freedom of expression and the State’s power to criminalise the deliberate dissemination of false information.
The State maintains that the provisions are not intended to punish legitimate expression, including opinions, satire, parody or honest mistakes.
Instead, it argues that the law is aimed at people who knowingly and deliberately present false factual claims as genuine information with the intention of causing harm or disorder.
According to the State, a proper interpretation of the provisions would limit their application to intentional or knowing false factual assertions, while excluding innocent conduct.
This would, it argues, protect journalists, social media users and members of the public who make honest mistakes, forward information without criminal intent, or engage in satire and commentary.
The State has further faulted the Court of Appeal for focusing on the potential misuse of the provisions rather than determining whether the sections, when narrowly interpreted, could be applied constitutionally.
It wants the Supreme Court to either uphold Sections 22 and 23 or provide an interpretation that aligns them with the constitutional protection of freedom of expression.
The State has also raised concerns over the possible legal consequences of leaving the provisions struck down, arguing that their removal could create uncertainty in ongoing investigations and prosecutions involving false information.
The Supreme Court will therefore be required to determine whether the disputed provisions unjustifiably limit freedom of expression under the Constitution or whether they can be narrowly applied to target deliberate and knowing dissemination of false information.
The Court of Appeal had previously found Sections 22 and 23 unconstitutional, holding that their broad wording could potentially expose innocent social media users, journalists and people who simply forward information to criminal liability.
The latest appeal now places the dispute before the country’s highest court, with the Supreme Court expected to determine the constitutional limits of Kenya’s cybercrime laws and regulation of false information.
