What court ruling on fake news' case means for free speech

The Court of Appeal’s decision in Bloggers Association of Kenya (BAKE) Attorney General and others is the clearest signal that Kenya should punish real, provable harm online, not contested versions of the truth. By invalidating Sections 22 and 23, the ‘false information’ offences, while upholding the Act’s core cybercrime and investigative framework subject to tight, court‑supervised safeguards, the ruling turns a page on years in which police and prosecutors leaned on criminal law to referee truth claims, a role the Constitution never intended.

BAKE first challenged the Computer Misuse and Cybercrimes Act (CMCA) in 2018. In 2020, the High Court dismissed the petition, but BAKE appealed. After a wide reevaluation, the Court of Appeal has found Sections 22 and 23 to be overbroad and likely to capture protected speech, including journalistic work, opinion, satire, and ordinary forwarding.

At the same time, the court left intact the law’s backbone, offences that protect children, guard against cyber‑harassment and cybersquatting, and secure computer systems. It also retained Part IV's investigative powers, with a stern caveat that warrants must be specific, time‑bound, and proportionate, and judges must act as active gatekeepers.

The two sections failed because they criminalised ‘false’ or ‘misleading’ information and thereby deputised the State to police truth in an arena where facts can be fluid, contested, or satirical. The court held that this offends the legality and proportionality tests under Article 24, which states that the law must be clear, pursue a legitimate aim, and be the least restrictive means. If the objective is to curb incitement, hate speech, or genuine public-order harms, other laws, such as the National Cohesion and Integration Act and civil defamation, are less restrictive and more proportionate means to use.

The ruling arrives amid ongoing legislative activity. Parliament published the Computer Misuse and Cybercrimes (Amendment) Bill, 2024 and later passed the Computer Misuse and Cybercrimes (Amendment) Act, 2025, expanding definitions and enforcement in areas like SIM‑swap fraud and critical information infrastructure. Following litigation by rights groups, the High Court suspended parts of the 2025 law pending constitutional review, especially where they were seen as vague with overbroad provisions regarding "false" information, threatening free speech, journalism, and online dissent.

Recent prosecutions illustrate the real‑world stakes of the now invalid provisions. In November 2024, blogger David Mokaya was charged under Section 22(1) after posting an image on X that appeared to show a funeral procession of the President. That charge targeted misleading political commentary, the very category the appellate court found constitutionally unsafe to criminalise.

In October 2023, blogger Silvance Adongo was charged under Section 23 over an allegation on X that the then Deputy President plotted to assassinate a legislator. Because the offence hinged on speech “likely to discredit” a person, it rested on a subjective standard the court has now rejected. Disputes over reputation are better addressed in civil law and not criminal defamation.

For journalists and content creators, the implications are immediate. The risk of arrest for “false news” has sharply diminished. Critical coverage of public officials is safer, and editorial choices, headlines, satire, and social posts are less likely to trigger criminal files. At the same time, the decision does not shield unlawful conduct like doxxing, non‑consensual intimate images, child sexual exploitation, identity theft, phishing, and unauthorised system access that remain offences. The win for free expression comes with a familiar reminder: accuracy, sourcing, and corrections are journalistic tools, not criminal ones.

The judgment further increases the responsibility on the bench. Investigatory powers survived precisely because cybercrime is complex, but the court demanded a higher standard from applicants and closer scrutiny by judicial officers. Expect more contested warrant hearings, tighter orders, and clear retention/destruction schedules for seized data. This Court of Appeal ruling reins in those powers by raising the constitutional bar for any rights‑limiting action.

Regionally, the court’s approach diverges from neighbouring countries. Uganda’s 2022 amendments broadened computer‑misuse offences linked to online expression and are now facing constitutional challenges. Tanzania’s Online Content Regulations are undergoing scrutiny at the East African Court of Justice.

Ghana still applies “false news” offences (outside its repealed criminal libel), prompting calls by media groups for repeal, while Nigeria has prioritised systems security in its recent amendments rather than policing truth claims. Taken together, Kenya’s line‑drawing reflects a human rights‑centred, harm‑focused model advocated by many digital‑rights organisations.

There is still policy work to do. Kenya must address deepfakes, coordinated disinformation and platform accountability without straying back into content‑based criminalisation. Practical steps include transparency and rapid corrections by public bodies, investment in media literacy and fact‑checking, and targeted offences for doxxing, intimidation and the non‑consensual distribution of intimate images, measures that protect people while leaving free speech intact.

In summary, the court has offered a Kenyan blueprint for digital constitutionalism of punishing tangible harm, regulating precisely, and letting judges, not computer algorithms or political agendas, be the ones who protect citizens’ rights and decide when the state can limit speech, as the ultimate safeguard. If Parliament legislates with that humility, and if newsrooms double down on accuracy, Kenya can sustain a digital public square that is secure and free.