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Introduction
The Computer Misuse and Cybercrimes (Amendment) Act, 2025, was assented to on the fifteenth of October 2025 and is set to come into force on the fourth of November 2025. Among its key provisions is an amendment to section 27 of the principal Act, which deals with the offence of cyber harassment. The amendment introduced an important phrase in subsection 1(b), adding the words “or is likely to cause that other person to commit suicide.” This addition seems progressive at first glance because it recognises the mental and emotional harm caused by online abuse. It is a reflection of the growing awareness that digital harm can lead to devastating consequences. However, behind this compassionate intent lies a complex legal and constitutional debate that touches on freedom of expression, human dignity, and the proper limits of criminal law in the digital age.
Section 27, as amended, makes it an offence for any person to wilfully communicate, directly or indirectly, with another person or about another person in a manner that is likely to detrimentally affect that person or is likely to cause that person to commit suicide. It also criminalises communication that is indecent or grossly offensive in nature and that affects another person. The penalty is severe, carrying a fine not exceeding twenty million shillings or imprisonment for a term of up to ten years, or both. This provision therefore treats cyber harassment as a serious crime, acknowledging that words, images, or digital messages can inflict wounds as painful as physical violence.
Legislative Intent and the Social Imperative
The legislative intent behind section 27 is straightforward. Kenya, like many other countries, has experienced a surge in digital communication through social media platforms, instant messaging, and online forums. These platforms have created valuable spaces for civic engagement and information exchange but have also become arenas for harassment, bullying, and exploitation. Cyberbullying, revenge pornography, digital stalking, and online defamation have left many victims helpless. The purpose of section 27 is to create a legal shield for victims by holding accountable those who use digital communication as a tool of harm. The law therefore serves a legitimate public purpose consistent with the state’s obligation to protect citizens from both physical and psychological harm.
The constitutional question, however, is not whether such protection is desirable but whether the method used to achieve it respects the principles of the Constitution of Kenya, 2010. Article 33 of the Constitution guarantees every person the right to freedom of expression, including the right to seek, receive, and impart information or ideas. This right is foundational to Kenya’s democracy because it allows citizens to question authority, expose wrongdoing, and debate public affairs without fear. Yet Article 33(2) recognises that this right is not absolute. Expression that amounts to hate speech, incitement, or advocacy of hatred may be restricted. Further, Article 24 allows other limitations if they are reasonable and justifiable in an open and democratic society that values human dignity and equality. This means that any law limiting expression must serve a legitimate purpose and must do so in a way that is necessary and proportionate.
Constitutional Evaluation: Freedom, Dignity, and Proportionality
When tested against these constitutional principles, section 27 clearly pursues a legitimate aim. It seeks to prevent psychological harm and protect human dignity, both of which are recognised constitutional values. It also has a rational connection to its objective because there is little doubt that harmful digital communications can cause emotional distress and even lead to suicide. The challenge arises, however, when we examine whether the limitation of expression under this section is necessary and proportionate. The language of the section is broad and open to interpretation. Phrases such as “detrimentally affects” and “grossly offensive” are subjective and could capture a wide range of conduct, from serious harassment to simple criticism or satire. What one person perceives as offensive might, to another, be fair comment or political expression.
Without clear thresholds for what constitutes harm or intent, section 27 risks being applied to legitimate expression. This is particularly concerning in a political environment where online platforms serve as spaces for activism and dissent. If applied broadly, the law could suppress speech that challenges authority or exposes wrongdoing. The principle of legality in criminal law requires that offences be defined with precision so that citizens can foresee what behaviour is punishable. Ambiguity undermines this principle and leaves room for selective or arbitrary enforcement.
The severity of the penalties under section 27 further complicates the issue. A maximum sentence of ten years in prison or a fine of twenty million shillings is extremely harsh for an offence that may, in some cases, involve subjective perceptions of offence rather than concrete harm. Criminal sanctions of this magnitude should be reserved for conduct that is clearly harmful and intentional. The danger of over-penalisation is that it may deter not only harmful communication but also legitimate speech, thereby creating a chilling effect on public discourse.
Judicial Interpretation and Evolving Jurisprudence
Kenyan courts have already had occasion to consider the constitutionality of section 27. In the case of Bloggers Association of Kenya v Attorney General and Others, decided in 2020, the High Court was asked to determine whether the section violated the right to freedom of expression and privacy. The petitioners argued that the law was vague and open to misuse. The Court upheld the provision, finding that it served a legitimate purpose in protecting individuals from harmful online conduct and that it did not, in its then form, unreasonably limit constitutional rights. The Court, however, cautioned that enforcement should always respect due process and that prosecutorial discretion must not be used to target dissenting voices or journalists.
The legal context has since evolved. Following the 2025 amendment that introduced the reference to suicide, concerns have deepened about the breadth of the section. In October 2025, the High Court in Nairobi issued conservatory orders suspending the enforcement of section 27(1)(b), (c), and (2) pending full constitutional determination. The Court observed that the amended provisions were too broad and might be used to criminalise legitimate expression. This development reflects a judiciary increasingly aware of the need to balance protection from harm with the preservation of constitutional freedoms. Kenyan jurisprudence has consistently emphasised that laws restricting speech must be clear, accessible, and predictable. Citizens must know in advance what conduct is criminal, and state agencies must not be left with unfettered discretion.
Balancing Rights in the Digital Era
The challenge of regulating online communication is not unique to Kenya. In the United Kingdom, similar offences under the Malicious Communications Act and the newer Online Safety Act include clear definitions and intent requirements. They also recognise defences for communications made in the public interest. Kenya’s section 27 lacks this clarity and does not specify whether intention to harm is a necessary element of the offence. Nor does it recognise exceptions for truthful statements, satire, or commentary made in good faith. The absence of such safeguards risks conflating harmful harassment with legitimate criticism.
The broader question raised by section 27 is how to balance the right to freedom of expression with the right to dignity and psychological well-being. Both rights are protected under the Constitution and are equally vital to the democratic order. Expression allows citizens to participate fully in governance, while dignity ensures that this freedom does not become a tool of oppression or humiliation. The Supreme Court of Kenya captured this balance in the case of Geoffrey Andare v Attorney General, when it observed that freedom of expression, though fundamental, must not become a licence to destroy the dignity of others. This reasoning offers an important guide for interpreting section 27. The law should be a shield that protects, not a sword that silences.
When understood in this light, the problem with section 27 is not its objective but its scope. The intent to curb cyber harassment is both necessary and timely. However, the language used to achieve that intent is overly expansive and may lead to unintended consequences. It blurs the distinction between actual harm and mere offence. In a democratic society, laws that regulate expression must be carefully crafted to target only conduct that causes genuine harm while leaving space for robust debate and criticism.
Conclusion
The debate surrounding section 27 of the Computer Misuse and Cybercrimes Act reflects the broader struggle to define justice in the digital age. The Constitution of Kenya recognises that the Bill of Rights is central to democratic governance and that its purpose is to preserve both dignity and freedom. These values must coexist rather than compete. The law must protect those who suffer from online abuse without stifling those who use digital platforms to speak truth to power.
Section 27 captures Kenya’s commitment to addressing the harms of cyberspace, yet it also reveals how fragile the balance between protection and freedom can be. The state’s duty to protect cannot override the citizen’s right to express. Both must be harmonised through clarity, fairness, and proportionality. Ultimately, the strength of Kenya’s constitutional democracy will not be measured by the breadth of its laws but by the wisdom and restraint with which they are applied. Section 27 will stand the test of time only if it remains true to this constitutional promise: that in safeguarding dignity, we must never silence liberty.
