Cybercrime law must protect free speech
By Kamau Ngugi
The Computer Misuse and Cybercrimes Act, 2018, has been utilised to limit the freedom of expression of HRDs and voices critical of violations and abuses. Various sections of this Act including sections 16 and 23 have been the to go offences, aimed at harassing, threatening and silencing HRDs. The cases of Mutemi Kiama and Rose Njeri come to mind. On 15th October 2025, President William Ruto signed into law the Computer Misuse and Cybercrimes (Amendment) Act, 2024. The amendments to the principal Act, create a platform to further limit the freedom of expression, despite its guarantee under Art 31 of the Constitution.
A particularly problematic amendment is to Section 6 of the Act, which, provides for the functions of the Committee. This section has been amended by inserting a new sub-section (ja) that provides, “where it is proved that a website or application promotes unlawful activities, inappropriate sexual content of a minor, terrorism or religious extremism and cultism, issue a directive to render the website application inaccessible”. This amendment grants the Committee excessive and unchecked powers, where they can block websites or applications, where in their view, among others promotes unlawful activities. Although the new provision states action will only be taken where the offence has been proved, there are no checks in place to ensure that any evidence was adduced and interrogated, leading to the closure of a particular website or application. Such vast powers within the Executive, and in recent times where we have witnessed the clamp down on voices critical against violations and abuses including human rights defenders, spells a danger and a platform to limit the freedom of expression and media freedoms.
Amendment to Section 46, allows an authorised person to order the removal of content or deactivate a computer system. It is of concern the vagueness in the definition of who an authorised person is. Such powers, as with the Committee, run the risk of being abused and to harass, threaten and intimidate Human Rights Defenders to include limiting the freedom of expression.
It cannot be ignored that human rights defenders in present times, leverage on technology, to share and disemminate information on diverse human rights issues. Where such information is shared, for instance, one criticizing the government for failing to put in place adequate health care systems and exposing corruption in the parent ministry, risks being deemed to be promoting an unlawful activity. This may be despite the fact, such information shared is evidenced based. The Committee in such an instant would find such information unlawful and proceed to close such website or application. What is glaring as well, is the lack of a proper definition of what constitutes unlawful activities. As such, there is nothing baring the Committee from misusing the vagueness to limit the freedom of expression.
Part of section 6 makes mention of promoting terrorist activities. Following the peaceful protests in the country and specifically June and July 2025, we witnessed the application of anti-terror laws particularly the Prevention of Terrorism Act, 2012 to harass, threaten and intimidate human rights defenders. With the existence of this provision, and as history bears witness, the Committee can utilise this provision to harass, intimidate and threatened human rights defenders, especially where they choose to exercise their freedom of expression through peaceful protest or assembly.
The freedom of expression remains vital in ensuring that human rights defenders are in a position to address and highlight pressing human rights issues to include violations and abuses. This is achieved through diverse mediums including, writing, art, poetry and online discussions. This is a fundamental freedom guaranteed in the Constitution under Article 33. In addition, regional and international treaties including the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. Where this freedom is limited in an arbitrary way, violations and abuses may go unnoticed, granted that highlighting the same may be deemed illegal. The stiff penalties under Section 20 of the principal Act, will be abused to intimidate HRDs.
The rights and freedoms guaranteed under the Constitution should be safeguarded. Regressive laws that seek to clawback on these gains, should be shunned.
This Article was first published in the The Star News Paper on 7 November 2025