Law Must Not Be Used as a Tool to Suppress Dissent: Human Rights Watch Cautions Kenya Over Cybercrime Law Changes

“The amendments are vague, expansive, and risk becoming instruments of repression rather than regulation” – Human Rights Watch on Kenya’s Cyber Law Proposal. Human Rights Watch (HRW) issued a critical statement flagging significant concerns over the proposed amendments to Kenya’s Computer Misuse and Cybercrimes Act, warning that the changes may undermine constitutionally protected rights including freedom of expression, privacy, and access to information. According to the international rights body, the new provisions risk converting a statute intended to combat genuine cyber threats into a mechanism for censorship and political control.

Describing the proposals as "overbroad and susceptible to abuse", HRW urged Kenyan lawmakers to withdraw or extensively revise the bill, cautioning that the legislation, if passed in its current form, would contravene both the Kenyan Constitution and international human rights obligations.

“Cybersecurity must not be a veil for silencing critics” – HRW warns against vague provisions criminalising expression

The Computer Misuse and Cybercrimes Act, first enacted in 2018, was designed to address issues such as hacking, cyber fraud, and identity theft. However, parts of the original Act were immediately challenged before the High Court of Kenya on grounds of unconstitutionality. Civil society groups argued that several provisions infringed upon Article 33 (freedom of expression), Article 31 (right to privacy), and Article 34 (freedom of the media) of the 2010 Constitution of Kenya.

Despite these objections—and rulings by courts calling for a more rights-compliant framework—the Government introduced a new set of amendments in 2023, which are currently under consideration in Parliament. According to HRW’s latest analysis, these proposed revisions risk deepening the constitutional crisis by reintroducing ambiguous and punitive language previously questioned by courts.

Human Rights Watch: “Provisions are so vague that any online opinion could be branded ‘false information’”

Legal Concerns and HRW Observations:

Human Rights Watch points out that the bill introduces or expands several problematic areas, including:

• Criminalisation of "false or misleading information" online, without establishing objective criteria or requiring intent;
• Empowerment of authorities to direct internet service providers to remove content or restrict access, without judicial authorisation;
• Expansion of surveillance powers, including access to private communications, without adequate oversight;
• Creation of broad offences such as "offensive communication", without narrowly defining what constitutes "offensive".

According to HRW, these clauses violate the principle of legal certainty, which requires criminal laws to be clear, specific, and predictable. Any law that imposes criminal liability must ensure that individuals can reasonably foresee the consequences of their actions. HRW warns that these provisions are incompatible with this principle, both under the Kenyan Constitution and under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Kenya is a State Party.

“Kenyan authorities should not be handed unchecked discretion to police online speech. Vague criminal offences combined with executive control risk chilling dissent and silencing independent journalism,” HRW stated.

Courts Have Warned Before: Constitutionality of Cyber Laws Must Be Preserved

HRW’s concerns are reinforced by earlier judicial precedents. In 2018, in Bloggers Association of Kenya v. Attorney General, the High Court suspended enforcement of several parts of the original Act, pending full determination on grounds that they violated free speech and due process rights.

Again in 2020, the Court of Appeal, while addressing the same legislation, expressed unease with overbroad definitions and discretionary powers, indicating that any criminal restriction on speech must meet constitutional standards of necessity and proportionality.

HRW has criticised the latest proposals as ignoring judicial guidance and reverting to legislative overreach, potentially undermining Kenya’s democratic framework and digital freedoms.

“Digital Rights Are Human Rights”: International Law Demands Narrow, Proportionate Regulation

In its statement, Human Rights Watch emphasized that international human rights instruments—including the African Charter on Human and Peoples’ Rights and the ICCPR—require that restrictions on expression or privacy must be lawful, necessary in a democratic society, and proportionate.

The organisation maintains that the proposed amendments fail on all three fronts. Not only are the offences vaguely worded, they also confer excessive discretionary power on executive agencies, without clear procedures for appeal, review, or judicial scrutiny.

“Instead of protecting Kenyans from legitimate cyber threats, these amendments risk targeting bloggers, activists, whistleblowers, and journalists who speak truth to power,” HRW noted.

HRW called for a transparent and participatory legislative process, involving civil society, media, technology experts, and the judiciary, to ensure that any future cyber law reform is rights-respecting and grounded in constitutional safeguards.

Law Must Be a Shield, Not a Sword

Human Rights Watch’s latest intervention adds critical weight to the growing chorus of civil society opposition to Kenya’s proposed cyber law amendments. While cybersecurity remains an important public policy goal, HRW cautions that such legislation must not become a means to erode constitutional liberties or consolidate executive control over digital spaces.

The organisation has urged Parliament to pause further action on the bill, conduct extensive consultations, and align the legislative framework with both national constitutional guarantees and international human rights norms.

If enacted in its current form, the amendments may face further constitutional challenge before Kenyan courts, which have previously demonstrated a strong inclination to strike down legislative overreach in matters of digital freedom and civil liberties.