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Despite constitutional guarantees, the strategic use of defamation and cybercrime laws by powerful figures is creating a chilling effect on journalists and human rights defenders, undermining public accountability and democratic principles.
In Kenya, the promise of freedom of expression and media independence, enshrined in the Constitution, faces growing challenges. Legal instruments, originally designed to protect these fundamental rights, are increasingly being weaponised to silence critical voices, particularly those of journalists and human rights defenders. This trend raises concerns about the erosion of public accountability and the health of Kenya's democratic space.
The battle for free expression is now frequently waged in courtrooms, where powerful individuals in politics, business, and government initiate lengthy and expensive lawsuits. These cases, often disguised as defamation or privacy claims, are perceived by critics as attempts to stifle criticism and discourage public participation. The outcome is often predictable: exhaustion and self-censorship among those targeted.
Kenya's journey towards unfettered expression has seen pivotal historical milestones, from the struggle for independence to the enactment of the 2010 Constitution, which was emblematic of a collective aspiration for inclusive participation and the amplification of diverse voices. Article 33 of the Constitution guarantees every person the right to freedom of expression, encompassing the freedom to seek, receive, and impart information or ideas, as well as artistic creativity and academic freedom. Article 34 further guarantees the freedom and independence of electronic, print, and all other types of media, prohibiting the State from interfering with media functioning or penalising individuals for their opinions.
However, this freedom is not absolute and does not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. While these restrictions are necessary for public order, their application must be judicious to avoid stifling legitimate discourse.
The legal framework surrounding freedom of expression in Kenya includes the Defamation Act (Cap 36), which primarily deals with civil defamation. Defamation is defined as a false statement that harms a person's reputation, encompassing both libel (written) and slander (oral). To prove defamation, a plaintiff must demonstrate that a false and damaging statement was made about them and communicated to a third party, causing reputational harm.
While criminal defamation under Section 194 of the Penal Code was declared unconstitutional by the High Court in 2017, the Computer Misuse and Cybercrimes Act (CMCA) of 2018 has introduced new provisions that critics argue reintroduce elements of criminal defamation. Sections 22 and 23 of the CMCA criminalise the publication of false information likely to harm a person's reputation, raising concerns about their potential misuse to curb online expression. Furthermore, hate speech is penalised under the National Cohesion and Integration Act (NCIA), with broad definitions that can lead to fines or imprisonment.
Journalists and human rights defenders frequently bear the brunt of these legal challenges. The Media Council of Kenya and other media organisations have reported an increasing number of press freedom violations, including harassment, physical attacks, and arbitrary arrests, with state actors often implicated. For instance, in May 2025, Kitui-based journalist Emmanuel Maleve was arrested over alleged cybercrimes targeting an MP, a case that activists claim is an example of police being misused to silence critics. Similarly, during anti-government protests, journalists have been teargassed, shot at, and arbitrarily arrested, with some reporting being targeted due to their work.
Women journalists, in particular, face a double layer of intimidation, experiencing legal harassment alongside gendered abuse and online attacks. This environment fosters a chilling effect, where speaking out feels dangerous and silence becomes a form of self-preservation.
Kenya's ranking in press freedom indices has shown a downward trajectory. In the 2023 Global Expression Report by ARTICLE 19, Kenya ranked 69 out of 161 countries. This indicates a decline from its 2022 ranking of 69 out of 180 countries in the World Press Freedom Index. The Kenya Media Sector Working Group documented over 20 cases of attacks and violations against journalists, including harassment, arbitrary arrests, and physical attacks, during anti-government protests in April 2023, with state actors responsible for a significant proportion.
The erosion of free speech and media freedom weakens democracy by hindering public accountability. When those in power use the law to silence criticism, citizens' ability to make informed choices is compromised. The vagueness and broadness of certain legal provisions, such as those in the CMCA, allow for their arbitrary application, potentially stifling civic engagement and constricting the public sphere.
The ongoing appeal by the Bloggers Association of Kenya (BAKE) and the Law Society of Kenya against a High Court ruling that upheld the constitutionality of certain CMCA provisions remains unheard as of May 2024. The outcome of this appeal will significantly impact the future of online expression in Kenya. Additionally, the referral of Mumias East MP Peter Salasya's hate speech case to the National Cohesion and Integration Commission (NCIC) for review in October 2025 has reignited debate on the limits of free speech versus hate speech, with its outcome potentially setting a precedent for future cases involving legislators and online platforms.
The ongoing legal challenges to the Computer Misuse and Cybercrimes Act will be crucial in shaping the landscape of online expression. Observers will also be keen to see how the NCIC handles the hate speech case involving MP Peter Salasya, as it could establish important precedents. Furthermore, continued vigilance from civil society and media organisations will be essential in monitoring and advocating for the protection of free speech in Kenya.
