Kenyan Court Establishes Judicial Oversight for Website Shutdowns, Curtailing Executive Power
NAIROBI – In a landmark ruling that significantly bolsters digital rights and establishes crucial checks and balances, the Kenyan High Court has declared that government authorities cannot unilaterally shut down websites without a court order. This pivotal decision effectively nullifies key provisions of the Computer Misuse and Cybercrimes (Amendment) Act, 2025, which had granted sweeping powers to executive agencies.
The ruling, delivered on Thursday following a series of petitions lodged by Kenyan civil society groups, underscores the judiciary’s role in safeguarding democratic principles against potential executive overreach. The court articulated that granting government bodies unfettered authority to block online content constitutes a form of censorship, undermining freedom of expression and the broader democratic landscape.
Specifically, the court has invalidated sections of the amended Act that conferred censorship-like authority. A primary target was Section 6(1)(j)(a), which empowered the National Computer and Cybercrimes Coordination Committee (NC4) to direct internet service providers (ISPs) to block websites and applications deemed to host terrorism content, cult activity, extremist material, or child sexual exploitation. The court reasoned that vesting such absolute power in a committee, without independent judicial review, raises serious questions about integrity and due process. The requirement for a court order, the ruling posits, introduces essential checks and balances, ensuring that content moderation decisions are subject to scrutiny.
The court further characterised such broad executive power as detrimental to freedom of speech, highlighting its potential for misuse in controlling online discourse and restraining individuals’ ability to express themselves on digital platforms. The judgment emphasised that Section 6(1)(j)(a) provided a mechanism for content blocking that bypassed judicial oversight. Crucially, the government failed to demonstrate the necessity of this power or the absence of less restrictive alternatives to achieve its stated objectives.
Beyond the immediate implications for website shutdowns, the High Court also addressed Section 27(1)(b) of the Act, which criminalised sending communications “likely to cause” someone to commit suicide. The judge found the wording to be excessively vague, stating that criminal offences must be defined with sufficient clarity to inform individuals of proscribed conduct. The subjective and open-ended nature of “likely to cause” was deemed insufficient to meet this legal standard.
This judicial intervention arrives amidst a backdrop of concerns regarding government actions that have previously led to internet disruptions, fuelling accusations of censorship. Notably, during the youth-led #RejectFinanceBill protests in June 2024, the Communications Authority faced allegations of throttling internet connectivity, despite earlier denials of any intent to restrict access. The court’s ruling now provides a robust legal framework to prevent such actions in the future, reinforcing the principle that digital access and expression are protected rights, subject to due legal process.
