Court strikes down state powers to block websites, expands free speech protections

In a judgment delivered on Thursday, Justice Patricia Nyaundi found that the impugned provisions violated constitutional guarantees on freedom of expression and media freedom, holding that they failed to satisfy the constitutional threshold for limiting fundamental rights.

The court declared Section 61JA, which empowered the NC4 to direct that websites and applications be rendered inaccessible, and Section 27(1)(b), which broadened the offence of cyber harassment, unconstitutional, invalid and of no legal effect.

Justice Nyaundi ruled that the website-blocking provision granted sweeping powers without adequate safeguards, including judicial oversight, creating an unjustifiable limitation on constitutional rights.

On the cyber harassment provision, the judge said Parliament had introduced a vague and speculative standard by criminalising communication that is "likely" to cause another person to commit suicide.

"Section 27 now criminalises communication that is likely to cause the person to commit suicide, thereby introducing a speculative, indeterminate and wholly subjective basis for criminal liability. Its standard is untethered from objective criteria and collapses the distinction between demonstrable harm and hypothetical psychological impact," Justice Nyaundi held.

The judge added that the provision offended the constitutional principle of legality by failing to provide sufficient clarity and certainty for criminal offences.

"In doing so, it violates the principle of legality under Articles 25 and 50(2) of the Constitution, which demand clarity, precision and foreseeability in criminal norms. Given the severe penalties that are attached upon conviction, the amended section cannot withstand constitutional scrutiny," she ruled.

The court concluded that Section 27(1)(b) was therefore unconstitutional and invalid.

However, Justice Nyaundi declined to invalidate the law on the grounds that it violated the right to privacy, finding that the petitioners had not specifically demonstrated how the challenged provisions infringed Article 31 of the Constitution or the relevant provisions of the Data Protection Act.

"The petitioners did not point out the specific sections of the Act and how they contravened the Constitution. On this particular ground, therefore, the petition failed the precision test," the judge said.

The petitions had argued that the amendments threatened digital rights by granting administrative authorities excessive powers to censor online content and criminalising speech using vague and subjective standards.

In partially allowing the consolidated petitions, the court issued a declaration that Sections 61JA and 27(1)(b) of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 are unconstitutional and of no legal effect.

The decision is a significant victory for digital rights advocates, reinforcing that restrictions on online expression must be clear, proportionate and subject to judicial oversight to meet constitutional standards.