National Assembly Appeals to Supreme Court Over Struck-Down Cybercrime Provisions

The National Assembly has moved to the Supreme Court seeking to overturn a Court of Appeal decision that declared two provisions of the Computer Misuse and Cybercrimes Act unconstitutional.

Parliament, through the Speaker of the National Assembly, is challenging the decision on Sections 22 and 23, arguing that the appellate court erred in striking down the provisions despite safeguards that, in its view, limit their application to deliberate and knowing dissemination of false information.

The appeal places freedom of expression at the centre of the dispute, with the National Assembly arguing that the Constitution protects opinions, satire and honest mistakes but does not extend the same protection to deliberate attempts to present false information as fact with the intention of causing widespread harm.

“Freedom of expression protects opinion, satire, and honest error. It does not protect a calculated, malicious intent to deceive and cause mass chaos,” the National Assembly argues.

Parliament Defends Criminalisation of Deliberate Falsehoods

The National Assembly contends that Sections 22 and 23 should not be viewed as criminalising ordinary expression or accidental sharing of inaccurate information.

According to Parliament, the provisions can be narrowly interpreted to apply only to “intentional or knowing false factual assertions”, thereby excluding legitimate forms of expression.

The proposed interpretation would, Parliament argues, protect opinions, satire, parody, honest mistakes, innocent forwarding of information and journalistic inaccuracies where the necessary criminal intent is absent.

The National Assembly further argues that the Court of Appeal placed excessive emphasis on the possibility that the law could be misapplied instead of assessing whether the provisions, when properly interpreted, actually criminalise innocent conduct.

“The mere possibility that a provision may be misapplied does not establish that the provision itself is overbroad,” Parliament says in its appeal.

Appeal Seeks Reinstatement or Narrow Interpretation

The National Assembly is asking the Supreme Court to set aside the Court of Appeal judgment and either uphold Sections 22 and 23 or adopt an interpretation that would bring the provisions into conformity with the Constitution.

Parliament has also raised concerns about the consequences of completely invalidating the provisions, arguing that doing so could create a gap in the law and uncertainty surrounding ongoing criminal investigations and prosecutions.

The appeal therefore places the Supreme Court before a broader constitutional question: how far the State can go in criminalising the deliberate dissemination of false information without violating the constitutional protection of freedom of expression.

Court of Appeal's Earlier Decision

The Court of Appeal had declared Sections 22 and 23 unconstitutional after finding that their broad wording could potentially capture innocent conduct by social media users, journalists and individuals who merely forward information.

The National Assembly, however, maintains that the provisions can be preserved through a narrower interpretation that targets intentional or knowing falsehoods while safeguarding legitimate expression.

The Supreme Court's eventual determination will have significant implications for Kenya's cybercrime laws, freedom of expression and the limits of State regulation of information shared online.