The Inspector General of the National Police Service, Douglas Kanja, announced that Albert Ojwang was found dead in the cells at Central Police Station after he had been arrested by Directorate of Criminal Investigations (DCI) Officers for “false publication” in Homa Bay, Siaya County, and transported to Nairobi. However, an autopsy conducted on 10 June 2025 reveals a head injury, neck compression, and other injuries pointing to assault, according to the office of the government pathologist. 

In a strange twist, the complainant in the case is none other than Deputy Inspector General Eliud Lagat. Kenyans of all walks of life have condemned the death of Albert in police custody, which raises serious issues about the policing of online speech and the tactics and laws used to arrest alleged perpetrators. In Albert’s case, many wonder why he had to be transported from Homa Bay to Nairobi, yet all law enforcement institutions are devolved, including DCI offices, holding cells and the courts. 

Calls for accountability have included demands that the Independent Policing Oversight Authority (IPOA) investigate the matter swiftly and thoroughly. Meanwhile, the Officer Commanding Station (OCS) and other officers at Central Police Station have been interdicted to “pave the way for investigations”. 

Beneath the tragic death of Albert is a law that has slowly morphed into the go-to tool for the repression of government critics. It began in 2021, when Edwin Mutemi Wa Kiama was arrested for posting tweets critical of a US$2.34 billion loan advance to the Kenyan government amid concerns about irresponsible borrowing. Soon after, another person was arrested under the same law for creating a website that, in real time, counted down Uhuru Kenyatta’s term in years, minutes, and seconds. This law is almost exclusively invoked at the behest of current or former public servants. 

In 2020, High Court Justice James Makau dismissed a petition filed by the Bloggers Association of Kenya (BAKE) and ARTICLE 19 that challenged the constitutionality of the Computer Misuse and Cybercrimes Act. When they submitted the petition in 2018, they argued that the law infringed on freedom of expression by reintroducing criminal defamation, which had been declared unconstitutional in 2017. 

They pointed out that the law attempted to criminalise false publications, which poses the risk of making the government the determiner of truth in a country that is meant to be open and democratic. The petitioners pointed out that the law contained overly broad and vague provisions, such as criminalising publications that incite panic, chaos, violence, fear of violence, or cause damage or loss to a person’s property. Furthermore, it criminalises content deemed to affect an individual or be indecent or grossly offensive.

In 2024, young Kenyans utilised social media platforms such as X, Facebook, TikTok, YouTube, Instagram, and WhatsApp to raise concerns about the Finance Bill 2024, which they believed was bad due to its taxation levels and spending priorities, including increased allocations to spouses of VIPs. Some translated the Bill into local languages, causing unprecedented civic education and opposition that the political class refused to heed. This led to countrywide protests that culminated in the breaching of Parliament, leading to the evacuation of MPs, as well as confrontations with police officers that led to the killing of dozens of protestors. 

A subsequent crackdown on suspected organisers, online influencers, and social media users who criticised the government, created graphics and silhouettes of the president, and used AI-generated images, some depicting the president in a coffin, took place. The Kenya National Commission on Human Rights reported over 60 deaths and 22 still missing after suspected enforced disappearances. For most of those targeted for their online activity, it was almost always under the Computer Misuse and Cybercrimes Act. 

In early June 2025, a Kenyan Software Developer and digital activist, Rose Njeri, was arrested under the Act, this time for allegedly violating Section 16 regarding “unauthorised interference with a computer system”, an offence which carries a maximum penalty of a fine of up to ten million shillings, imprisonment of up to five years, or both. She had created and shared a platform that allowed persons to interact and reject the Bill online. 

When Kenya formed a new social contract in 2010, a process that was jolted by the disastrous 2007 election, which caused unprecedented violence, death and destruction, Kenyans were clear that the state and all its organs belonged to the sovereign people of Kenya. The constitution, which was meant to be transformative, was designed to actively bring about significant social change through its interpretation, enactment, and enforcement. The executive, the legislature and the judiciary, as well as independent offices and commissions, were seized with a new reality of service and authority only to the extent that the constitution allows. 

The ambitious constitution outlined the national values and principles of governance, including the rule of law, democracy, people’s participation, human dignity, equity, equality, human rights, and accountability. 

Previously, holding public office automatically set a person apart, entitling them to better services, more respect and greater protection of the law. For instance, defamation of a public officer would attract the highest damages ever awarded. There were also laws in the statute books, such as Section 132, that criminalised “undermining authority of public officers” that seemed to elevate public officers above others. 

This was a misnomer because, under international law regarding open and democratic systems, the people must be able to criticise those who have been entrusted with leadership. After all, everything they are doing is being done on the people’s behalf. In absolute monarchies or theocracies, the sovereign is the royal or divine figure, and disrespecting them attracts severe criminal sanctions. 

The rationale is that those who seek or hold public office must endure greater public scrutiny and criticism than private citizens. This means that leaders must tolerate more criticism because the ability to critique them and their actions is part and parcel of the democratic process and the marketplace of ideas, which allows people to use information to elect or support better policies or leaders. It brings about the adage, “If You Can’t Stand the Heat, Get Out of the Kitchen”. 

Kenyan courts have, over time, interpreted the law progressively to ensure that Kenyans can fully participate in public discourse in accordance with the constitution. In 2017, Justice Chacha Mwita struck down Section 132 of the penal code, which criminalised the bringing into contempt or exciting defiance to the lawful authority of a public officer. Blogger Robert Alai filed the case after he was arrested and charged for commenting about a statement made by then President Uhuru Kenyatta about opposition leader Raila Odinga. He declared that the law was a colonial relic and that criminalising dissent amounted to “suppressing the right to hold different opinions from those in public office”, and found that it is no longer tolerable to subject the public to oppressive laws for the sole purpose of protecting the dignity of public officials. 

Earlier, in 2017, in a case filed by Jacqueline Okuta and Jackson Njeru, the High Court had declared criminal defamation unconstitutional, finding that it was a disproportionate limitation of freedom of expression and that, even if protection of reputations of others was a legitimate aim, a less restrictive means through civil defamation exists, which does not involve an arrest, bail/bond, taking a plea, hiring a lawyer, or the prospect of a prison sentence for commentators or journalists. 

In 2015, another vaguely worded provision that had been used to arrest persons commenting about leaders was Section 29 of the Kenya Information and Communications Act, which criminalised “grossly offensive” statements and false statements that are annoying, inconvenient, or cause needless anxiety. Then High Court Judge Mumbi Ngugi found that the law was overly broad and vague, thus violating the principle that requires laws to be clear and concise, which allows people to know when they have stepped over the line and avoids subjective interpretation by police, prosecutors, and judicial officers. By this time, the courts had clarified the three-part test outlined in Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 24 of the Constitution of Kenya. The first requirement is that any limitation on freedom of expression must be clear and concise. The second is that it must pursue a legitimate aim, such as public order or national security. Finally, the limitation must be necessary and proportionate.

In 2018, members of parliament and the political class at the national and county levels had borne the brunt of a freer Kenya where public criticism was the norm. As the Computer Misuse and Cybercrimes Bill was being drafted, they vowed to put an end to Kenyans holding them accountable. Eventually, the Bill was assented into law, with Sections 22, 23 and 27 being very problematic. Sections 22, 23 & 27 criminalise the publication of so-called false, misleading, or mischievous information; content allegedly intended to cause panic, chaos, or violence or that causes one’s reputation to get into disrepute; and communications that might provoke fear, apprehension, or loss. Apart from cleverly reintroducing criminal defamation that had been elaborately critiqued, the penalties are severe, ranging from 2 years or a 5 million fine under Section 22, 5 million and 10 years for Section 23, and 10 years and 20 million, or both, and are clearly disproportionate, raising concerns under constitutional and international freedom of expression standards.

The petitioners who challenged the judgment filed a memorandum of appeal in response to the Justice Makau judgment, which left the CMCA intact. Pending hearing and determination of the appeal, it continues to be the go to law for clamping down on online speech. When the Court of Appeal finally hears the matter, many hope that the judiciary will interpret the law in line with the national values and principles of governance. 

Criminalisation of speech that has the potential to harm society in terms of security is allowed under international law. Under the Kenyan Constitution, Article 33 (2) elaborates that freedom of expression does not extend to propaganda for war, incitements to violence, hate speech and advocacy for hatred based on discrimination. This should be the guide for criminalisation of content because there is a clear correlation between them and the likelihood of violence and national strife. 

Social media is a double-edged sword; it can be used for expression, connecting people, organising and public participation. It can also be used for technology-assisted gender-based violence, spreading hate speech, misinformation, and exploitation of children, among other harmful uses. Kenyans need to have a candid conversation about how to combat these issues. However, what we are currently witnessing with the CMCA is a political class that is more afraid of criticism than genuinely taking measures to safeguard society. All speech laws, including the ones that are legitimately designed to preserve national cohesion, such as hate speech laws under the National Cohesion and Integration Act, are usually only applied when a prominent person is involved. For instance, in 2015, the only conviction under the NCIA was that of Alan Wadi, who posted on Facebook saying that members of the president’s Kikuyu ethnic group should be confined to certain parts of the country. After pleading guilty and being sentenced to two years imprisonment, the conviction was later overturned for violating various due process provisions, including the trial magistrate disregarding his statement alluding to mental health issues when he was pleading guilty. He was also charged under Section 132 for undermining the president’s authority, which is likely why he was charged in the first place. 

The tragic death of Albert is another reminder of the deadly consequences of criticising those in power under the current legal framework. True democracy demands that public officials be held accountable and open to criticism without fear of reprisal or violence. Kenya’s judiciary, lawmakers, and oversight bodies must reaffirm their commitment to the constitution’s values by reforming or repealing laws that disproportionately punish expression and by ensuring that those responsible for abuses of power are held accountable and brought to justice. Only then can Kenya transition from a place where speaking out comes at the price of death to one where every citizen can freely exercise their right to voice concerns and contribute to a more just and equitable society.