Human Rights Body Raises Alarms Over Risky Provisions in Kenya’s Computer Misuse Act
Nairobi, Kenya - Human rights advocates in Kenya are intensifying calls for President William Ruto to revise key sections of the newly enacted Computer Misuse and Cybercrimes Act, citing serious threats to civil liberties and fundamental freedoms.
The Kenya National Commission on Human Rights (KNCHR) has labeled the legislation as deeply flawed, arguing that it clashes with constitutional protections for privacy and freedom of expression. In a recent presentation to the Senate's National Cohesion Committee, KNCHR representatives, including Chairperson Claris Ogangah and Head of Research and Compliance Martin Pepela, urged the Executive and Parliament to act swiftly. They described several clauses as excessively broad, warning that these could lead to the criminalization of everyday online speech that is entirely legitimate.
The commission emphasized that the Act falls short of essential legal principles, including clarity, proportionality, and fairness. Multiple sections, they contended, infringe on non-derogable constitutional rights, such as those related to privacy, freedom of thought, and freedom of expression. By targeting speech that the state might view as offensive, objectionable, or undesirable, the law could put Kenya at odds with its commitments under international human rights treaties.
Originally sponsored by Wajir East MP Aden Mohamed, the Act aims to combat the exploitation of digital platforms for activities like terrorism, religious extremism, and cult recruitment. While its intentions appear focused on public safety, the legislation has sparked widespread backlash from civil society organizations and legal scholars. Groups including the Law Society of Kenya and the Kenya Human Rights Commission have launched separate legal challenges, pointing to violations of Article 31 of the Constitution as well as Sections 25 and 27 of the Data Protection Act. In response, the High Court has issued a temporary suspension of Section 27(1) and (2) pending the outcome of these cases.
KNCHR's critique zeroed in on specific problematic clauses. Clause 3, for instance, empowers authorities to block or shut down websites and applications suspected of promoting illegal activities, sexual content involving minors, terrorism, or extremist ideologies. The commission highlighted the vagueness here: the term "illegal activities" lacks a clear definition, and no specific state body is designated to handle enforcement. This ambiguity, according to KNCHR, invites arbitrary application and potential abuse, eroding the rule of law in the digital space.
Pepela characterized this provision as mischievous, vague, and overly expansive, noting that it paves the way for enforcement practices that could be weaponized against dissent or neutral content. Such risks, he argued, extend far beyond the law's protective goals.
Another flashpoint is Clause 4, which criminalizes communications that could incite someone to take their own life. KNCHR pointed out the clause's imprecise wording, which fails to incorporate expert psychiatric evaluations or establish clear standards for causation. This could inadvertently punish individuals for sharing personal experiences, such as mental health advocates recounting their struggles, rather than tackling root causes like inadequate support systems. Proving direct links between words and actions in these scenarios would be nearly impossible, the commission warned, potentially shifting focus from prevention and care to punitive measures. In essence, the clause might end up stigmatizing mental health discussions instead of fostering them.
The commission also took issue with the phrasing around "inappropriate sexual content of a minor." They deemed it confusing and legally weak, as it suggests the possibility of "appropriate" sexual content involving children, which undermines robust safeguards for child protection. Stronger, more precise language is needed to close loopholes and ensure unequivocal prohibitions.
As debates rage on, KNCHR's intervention underscores a broader tension in Kenya's digital governance landscape: balancing security imperatives with the preservation of open expression in an increasingly connected world. With petitions advancing through the courts and parliamentary scrutiny underway, advocates hope for amendments that align the Act with democratic values. For now, the temporary court halt offers a fragile reprieve, but sustained pressure will be key to averting a chilling effect on online discourse.