High court bars state from shutting down internet during protests, elections and national exams
Telecommunications service providers have also been ordered not to deny subscribers access to internet services through blockage or wholesale shutdown.
The High Court has restrained the Ministry of Information and Communication Technology and the Communications Authority (CA) from shutting down the internet during the tallying of general elections, protests and national examinations.
Telecommunications service providers have also been ordered not to deny subscribers access to internet services through blockage or wholesale shutdown.
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All agencies involved in licensing and regulation of internet services, telecommunication services providers, their staff and agents are also restrained from causing subscribers to be offline.
The orders issued by Justice Bahati Mwamuye will remain until a petition to permanently bar the government from keeping Kenyans in darkness to prevent security crises during the elections and protests, as well as curbing widespread cheating in national examinations.
"A conservatory order is hereby issued restraining the respondents jointly and severally, whether directly or through their employees agents or their related entities or entities under their super=vision from unlawfully causing enforcing, implementing or allowing wholescale shutdown, blockage or denial of access or service, causing to become offline of the internet o data services, electronic communication platforms, social media platforms or similar services and facilities," stated Mwamuye.
International Commission of Jurists, Bloggers Association of Kenya (BAKE), and Kenya Union of Journalists (KUJ) sued the state to stop the regular suspension of the internet and the use of social media platforms, blogs and phone calls by suspending internet services.
They have sued the CA, Attorney General, Ministry of ICT, and telephone services providers - Safaricom Limited and Airtel Kenya Limited as respondents in the petition to safeguard internet rights and freedom of expression.
Future violations
The scribes and civil society sought appropriate relief and aim to deter future violations, and want to forestall the harmful effects of internet shutdowns on human rights and democracy.
The three institutions say the internet enables the enjoyment of rights and freedoms while enhancing transparency and accountability in public and private spheres, therefore, internet shutdowns are powerful markers of sharply deteriorating human rights situations.
Lawyer Dudely Ochiel for the petitioners argue that the shutdowns also affect commerce and industry by disrupting financial transactions.
"Internet freedom is increasingly imperilled by emerging digital authoritarianism. The respondents have, during the 2023 and 2024 national examinations, routinely shut down Telegram. Then on June 25, 2024, during the Reject Finance Bill Protests, the respondents illegally shut down the internet," stated Ochiel.
"The June shutdown coincided with an unprecedented attack on fundamental rights and freedoms in which nearly 60 Kenyans were killed by state agents. Fearing a repeat internet shutdown, including during the 2027 general elections, petitioners filed this case."
Ochiel says the state should take all steps necessary to ensure that all individuals have meaningful access to the internet.
On the same, the state should refrain from interfering with access to the internet and digital communication platforms unless such interference is in full compliance with the requirements of the applicable human rights instruments.
Ochiel says that while the internet shutdowns deeply affect many rights, they most immediately affect freedom of expression and access to information, one of the foundations of free and democratic societies and an indispensable condition for the full development of the person.
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