Court of Appeal of Kenya Declares Publishing False Statements Not a Crime

In a judgment delivered by a three-judge bench comprising Patrick O. Kiage, Asike-Makhandia O. Muchelule and William Ouko Korir, the court ruled that Sections 22 and 23 of the Act are unconstitutional because they are overly broad and could criminalise innocent individuals.

Sections 22 and 23 criminalised the intentional publication of false or misleading information.

Section 22 made it an offence to knowingly publish false or misleading data intended to be treated as genuine information. The law restricted freedom of expression where such information could promote war, incite violence, amount to hate speech, spread ethnic hatred or discrimination, or damage the rights and reputation of others. Offenders faced a fine of up to KSh5 million, up to two years in prison, or both.

Section 23 criminalised knowingly publishing false information that could cause panic, chaos, violence, or harm a person’s reputation. Those convicted faced a fine of up to KSh5 million, up to 10 years in prison, or both.

The ruling followed an appeal filed by the Bloggers Association of Kenya challenging a 2020 High Court decision by James Makau, which had upheld the constitutionality of the Act.

The Bloggers Association of Kenya had asked the court to declare several sections of the Computer Misuse and Cybercrimes Act, 2018 unconstitutional, arguing that they violated rights including freedom of expression, privacy and the right to a fair trial.

However, the appellate court largely agreed with the High Court and found that most provisions of the law are constitutional and justified under Article 24 of the Constitution.

“The intention of Section 27 is clear. It is aimed at addressing harmful conduct occasioning harassment through an internet-enabled platform, which the legislature had the mandate to address,” the judges stated.

The court ruled that Parliament has the authority to create offences regulating behaviour in cyberspace in order to protect the public from harassment, fraud and other online crimes.

The judges emphasised that cyberspace cannot exist outside the reach of criminal law.

“Cyberspace cannot be a law-free environment, a virtual jungle or wild west devoid of criminal sanctions essential to deter its abuse,” the bench said.

The court also rejected the challenge to Section 28, which criminalises cybersquatting, stating that the provision protects intellectual property rights and prevents deceptive practices in the digital economy.

According to the judges, cybersquatting undermines trust in digital commerce and infringes on proprietary rights.

However, the bench ruled that Sections 22 and 23 were too broadly framed and could potentially criminalise innocent conduct.

“In the end, this appeal partially succeeds to the extent that we find Sections 22 and 23 of the Act unconstitutional for being too broad and likely to capture innocent persons,” the judges ruled.

All other grounds of appeal were dismissed.

The court also issued guidance to courts and state agencies implementing the law, warning that surveillance and interception powers must be used cautiously.

Judges and investigators were advised to clearly specify the offence under investigation, the period of interception, and how the collected data will be examined, stored and eventually destroyed.

The bench further warned that the law could be misused for political purposes if applied without proper scrutiny.

“Courts must remain alert to the risk that the Act could be deployed for political purposes and must carefully scrutinise every application before granting any order,” the judges said.