EAST AFRICAN JURISPRUDENCE ON DIGITAL SOVEREIGNTY AND CIVIL SOCIETY

by

Mercy Chore

CyJurII Theorist

On 24 September 2026

PDF Available

Abstract

The expansion of digital communication in East Africa has transformed the exercise of civic participation, access to information and collective organisation. At the same time, States have increasingly adopted laws and regulatory measures governing cyber-related conduct, online content and digital communications. This article examines how courts in Kenya, Uganda and Tanzania have responded to State regulation of digital expression and connectivity. It focuses principally on recent decisions concerning vague or overbroad digital offences, criminal defamation, online-content regulation, and interference with communications infrastructure. The analysis identifies recurring judicial concerns with legality, precision, proportionality and constitutional justification, while recognising important differences among national and regional courts. The article argues that the emerging jurisprudence is better understood not as a single doctrine of ‘digital sovereignty’, but as a developing body of constitutional principles governing the relationship between State regulatory authority and the legal conditions necessary for meaningful digital civic participation.

Keywords: digital sovereignty; civil society; freedom of expression; internet shutdowns; cybercrime; proportionality; East African Community; constitutionalism; digital rights.

1. Introduction

Digital communications have become an important infrastructure for political participation, journalism, civic organisation and access to public information in East Africa. In Kenya, approximately 27.4 million people were using the internet in January 2025, while the number of social-media user identities was reported at approximately 15.1 million. Tanzania had approximately 20.2 million internet users during the same period.¹ These figures demonstrate the scale of the digital environment in which contemporary questions concerning constitutional rights and State regulatory authority arise.

The expansion of digital civic space has, however, been accompanied by increasingly detailed legal regulation. Kenya’s Computer Misuse and Cybercrimes Act 2018, Uganda’s Computer Misuse Act 2011 and subsequent amendments, and Tanzania’s Cybercrimes Act 2015 and online-content regulations illustrate different approaches to the regulation of digital conduct. The resulting litigation has required courts to consider whether statutory restrictions on digital expression are sufficiently precise, whether they pursue legitimate objectives, and whether the means adopted are proportionate to the rights affected.

The expression ‘digital sovereignty’ is used in this article as an analytical concept rather than as an established doctrine of East African law. It refers to the State’s authority to regulate digital infrastructure, communications, information and cyber-related conduct, subject to constitutional and regional legal constraints. ‘Civil society’ is correspondingly understood to include journalists, bloggers, civil-society organisations, human-rights defenders and members of the public who use digital communications to participate in public affairs.

Recent decisions demonstrate that courts have approached these questions through different legal routes. The Kenyan Court of Appeal has scrutinized the precision and breadth of criminal restrictions on false information.² The Ugandan Constitutional Court has invalidated restrictions on electronic communications and, more recently, considered both the constitutionality of the legislative process and criminal libel.³ The East African Court of Justice (EACJ), by contrast, has upheld Tanzania’s online-content regulations against a Treaty-based challenge.⁴ Regional jurisprudence concerning internet shutdowns further demonstrates the connection between communications infrastructure and freedom of expression.⁵

The emerging picture is therefore neither uniformly restrictive nor uniformly protective. Rather, it reveals an evolving jurisprudence concerned with the legality, clarity, necessity and proportionality of State intervention in the digital public sphere.

2. The Regulatory Context

The East African Community (EAC) provides the broader regional framework within which these national developments occur. Its Treaty establishes principles including good governance, democracy, the rule of law and recognition and promotion of human and peoples’ rights.⁶ These principles provide an important regional context for disputes concerning digital regulation.

At national level, Kenya’s Computer Misuse and Cybercrimes Act 2018 creates offences relating to computer systems and data, including provisions governing false or misleading information.⁷ Uganda’s Computer Misuse Act 2011 similarly creates a range of offences concerning electronic communications and computer misuse.⁸ Tanzania regulates cyber-related conduct principally through the Cybercrimes Act 2015, while the Electronic and Postal Communications (Online Content) Regulations 2020 impose additional requirements on specified online-content providers.⁹

The legal significance of these instruments lies not merely in their subject matter but in their effect upon ordinary forms of digital communication. A criminal provision directed at malicious cyber conduct may also affect journalism, commentary, political criticism or the circulation of information where the statutory language is insufficiently precise. The constitutional question is consequently not simply whether a State may regulate digital communications, but whether the particular form and scope of regulation are compatible with applicable constitutional and human-rights standards.

3. Judicial Interpretation of Digital Speech Restrictions

3.1 Kenya: Precision, Overbreadth and False Information

The Kenyan Court of Appeal’s decision in Bloggers Association of Kenya (BAKE) v Attorney General & 6 others is a central recent authority. The appeal arose from a High Court decision dismissing a constitutional challenge to numerous provisions of the Computer Misuse and Cybercrimes Act 2018.¹⁰

Sections 22 and 23 were particularly significant. Section 22 concerned the publication of false, misleading or fictitious data, while section 23 concerned the publication of false information in circumstances specified by the legislation. The Court considered these provisions against the constitutional protection of freedom of expression and the constitutional framework governing limitations upon rights.¹¹

The Court’s reasoning focused on the breadth of the offences. It considered the possibility that the provisions could capture conduct extending beyond intentionally harmful communications and could affect persons who did not necessarily know that information was false.¹² The Court’s concern was therefore not confined to the factual accuracy of particular communications but extended to the legal uncertainty created by criminalising categories of information in terms that could encompass a wide range of speech.

The Court ultimately partially allowed the appeal and declared sections 22 and 23 unconstitutional.¹³ The decision illustrates an important principle of digital constitutionalism: the existence of a legitimate governmental interest in addressing harmful or false information does not eliminate the requirement that a criminal prohibition be sufficiently precise and appropriately confined.

The significance of BAKE extends beyond misinformation. The decision demonstrates that constitutional review may require courts to examine how an offence operates across the digital environment, including its potential application to journalism, commentary, satire and the ordinary forwarding or reproduction of information. The issue is therefore one of legal design as well as enforcement.

3.2 Uganda: Offensive Communication and Vagueness

Uganda provides an earlier and particularly clear illustration of judicial concern with vague digital offences. In Karamagi and Another v Attorney General, the Constitutional Court considered section 25 of the Computer Misuse Act 2011, which criminalized the wilful and repeated use of electronic communication to disturb or attempt to disturb another person’s peace, quiet or privacy without a legitimate communicative purpose.¹⁴

The Court considered the provision in light of article 29(1)(a) of the Constitution, which protects freedom of speech and expression, and article 43, which permits restrictions only within constitutionally prescribed limits.¹⁵ The Court emphasizsed that a law restricting fundamental rights must provide adequate guidance and must not be drafted so broadly that it captures persons or conduct beyond the legitimate objective of the restriction.¹⁶

The Court concluded that section 25 did not specify sufficiently what constituted ‘offensive communication’. It held that the provision was vague, overly broad and ambiguous and did not afford sufficient guidance for legal compliance.¹⁷ The Court accordingly declared section 25 inconsistent with article 29(1)(a) and ordered that its enforcement be stayed.¹⁸

The reasoning is significant because it treats precision as a substantive constitutional requirement. The problem was not merely that officials might apply the law improperly; the statutory language itself failed to provide an adequate standard against which citizens could determine what conduct was prohibited.

3.3 Uganda: Legislative Validity and Criminal Libel

The Ugandan Constitutional Court returned to digital expression in Alternative Digitalk Limited and Others v The Attorney General. The consolidated petitions challenged the Computer Misuse (Amendment) Act 2022 and section 162 of the Penal Code Act concerning criminal libel.¹⁹

The Court found that Parliament had enacted the Computer Misuse (Amendment) Act without compliance with the parliamentary quorum requirements. The Court held that rule 24(3) of Parliament’s Rules of Procedure imposed a duty to ascertain the requisite quorum before voting and that the failure to comply with that requirement rendered the legislation constitutionally defective.²⁰ The Court consequently declared the 2022 Amendment Act null and void and issued a permanent injunction against enforcement of the challenged provisions of the Computer Misuse Act as consolidated in 2023.²¹

The Court also considered criminal libel. It held that the statutory definition of libel, read together with the definition of defamatory matter, was vague and ambiguous.²² It further considered the relationship between criminal defamation and freedom of expression under article 29 of the Ugandan Constitution and Uganda’s obligations under article 19 of the International Covenant on Civil and Political Rights (ICCPR) and article 9 of the African Charter on Human and Peoples’ Rights (ACHPR).²³

The Court concluded that the criminal-libellous framework was incompatible with the applicable constitutional and international standards and declared the relevant provisions unconstitutional.²⁴ It also granted a permanent injunction against enforcement and awarded a specified proportion of the petitioners’ advocates’ costs.²⁵

Alternative Digitalk is therefore significant for two distinct reasons. First, it demonstrates that constitutional scrutiny of digital legislation can include the validity of the legislative process itself. Secondly, it confirms the continuing importance of legality, precision and proportionality where criminal sanctions affect expression.

The case should nevertheless be read together with Karamagi. Whereas Karamagi directly invalidated a digital communication offence because of its vagueness and breadth, Alternative Digitalk involved both legislative-procedure defects and substantive concerns concerning criminal libel. The decisions consequently illustrate related but analytically distinct grounds of constitutional review.

4. Tanzania and Regional Regulatory Deference

Tanzania presents a contrasting judicial outcome. In Legal and Human Rights Centre and Others v Attorney General of the United Republic of Tanzania, the First Instance Division of the EACJ considered a challenge to the Electronic and Postal Communications (Online Content) Regulations 2020.²⁶

The applicants argued that the Regulations imposed unjustified restrictions upon freedom of expression and were inconsistent with principles contained in the EAC Treaty, including articles 6(d), 7(2) and 8(1)(c).²⁷ The challenged regulatory framework included provisions concerning online-content regulation, licensing and prohibited content.

The EACJ dismissed the challenge. The Court’s decision addressed the clarity of the regulatory provisions and the legality and proportionality of the restrictions, and it upheld the challenged framework.²⁸ The judgment is consequently important because it demonstrates that judicial scrutiny of digital regulation does not necessarily lead to invalidation.

The Tanzanian decision should not be characterized as establishing an unrestricted power of the State to regulate online communications. Rather, its significance lies in the Court’s willingness to examine the regulatory framework through the Treaty standards and, having done so, to uphold the challenged measures. The case therefore sits alongside BAKE, Karamagi and Alternative Digitalk as part of a developing body of jurisprudence in which the legality and proportionality of digital regulation are assessed through the characteristics of the particular measure under challenge.

5. State Interference with Digital Connectivity

The regulation of digital civic space extends beyond speech offences and online-content rules. Access to the communications infrastructure through which speech is transmitted raises a separate set of constitutional questions.

5.1 Kenya: Internet Access and Judicial Protection

In 2025, seven Kenyan civil-society and professional organizations commenced proceedings challenging alleged interference with internet access. The proceedings, International Commission of Jurists Kenya Section & 6 others v Communications Authority of Kenya & 4 others, included allegations concerning interference with internet connectivity during periods of public protest and restrictions affecting particular communications platforms.²⁹ The proceedings were brought as a public-interest constitutional petition and included applications for interim protection.

The litigation is important but should be distinguished from a final merits determination. The petition challenged State and telecommunications-sector conduct and sought judicial protection against future interference with internet access.³⁰ Accordingly, the proceedings demonstrate the emergence of connectivity as a justiciable constitutional issue, but they should not be cited as establishing a final judicial rule on the legality of all internet shutdowns.

A related Kenyan case reached a final judgment in 2025. In Republic & 2 others v Director General, Communication Authority of Kenya & 2 others; Kenya Union of Journalists & 2 others (Interested Parties), the High Court considered a Communication Authority directive of 25 June 2025 concerning live coverage of demonstrations.³¹ The Court granted judicial-review relief, quashed the impugned decision and prohibited its enforcement.³² The reasoning engaged the constitutional protection of freedom of expression and media freedom and the requirement that limitations of constitutional rights satisfy article 24 of the Constitution.³³

These decisions demonstrate that digital constitutionalism encompasses not only the content of online speech but also the infrastructure and administrative decisions through which access to that speech may be facilitated or restricted.

5.2 Kenya: Subsequent Regulation of Cybercrime Legislation

The Kenyan jurisprudence continued to develop in 2026. In Law Society of Kenya & 8 others v Attorney General & 17 others, the High Court considered consolidated constitutional petitions challenging provisions of the Computer Misuse and Cybercrimes (Amendment) Act 2025.³⁴ The Court held that the petitions were not barred by res judicata and declared sections 6(1)(ja) and 27(1)(b) unconstitutional.³⁵

The decision is relevant to the broader trajectory of Kenyan digital constitutionalism because it demonstrates that judicial review of cybercrime legislation did not end with BAKE. Instead, subsequent legislation generated further constitutional litigation concerning the scope of State authority over digital communications.

6. Regional Jurisprudence on Internet Shutdowns

Although outside East Africa, the ECOWAS Court’s decision in Amnesty International Togo and Others v Togo provides an important African regional comparator. The case concerned an internet shutdown imposed during public protests in Togo.³⁶

The ECOWAS Community Court of Justice held that the shutdown unlawfully interfered with freedom of expression.³⁷ The Court treated internet access as an important means through which the right to freedom of expression is exercised and examined whether the interference had an adequate legal basis.³⁸

The decision is relevant to East African jurisprudence because it demonstrates how regional human-rights adjudication can conceptualize communications infrastructure as part of the practical conditions necessary for exercising protected rights. It does not, however, establish a binding rule for East African courts. Its value is comparative and interpretive.

7. Digital Sovereignty and Civil Society

The cases examined above reveal three principal dimensions of the relationship between digital sovereignty and civil society.

First, digital regulation is constrained by legality and precision. Karamagi and BAKE demonstrate judicial concern where criminal provisions are sufficiently broad or ambiguous to make it difficult for individuals to determine what conduct is prohibited.³⁹ The concern is particularly acute where the regulated conduct concerns speech because criminal sanctions may have a significant deterrent effect upon legitimate communication.

Secondly, limitations upon digital expression must be legally justified. The constitutional and regional frameworks considered in these cases do not treat freedom of expression as absolute. They nevertheless require restrictions to satisfy applicable standards concerning legitimate purpose, legality and proportionality. Alternative Digitalk illustrates this through its treatment of criminal libel and international human-rights obligations, while the EACJ’s Tanzanian decision demonstrates that the application of those standards can result in a regulatory framework being upheld.⁴⁰

Thirdly, digital sovereignty extends beyond substantive speech regulation to connectivity and communications infrastructure. Internet shutdowns, platform restrictions and administrative directions affecting media transmission can determine whether individuals are able to communicate at all. The Kenyan litigation and the ECOWAS decision concerning Togo demonstrate the increasing legal significance of this infrastructural dimension.⁴¹

The concept of digital sovereignty should therefore not be reduced to State control over technology. In a constitutional order, sovereignty is exercised through legal institutions and remains subject to constitutional and regional norms. The relevant question is consequently not whether a State possesses authority over its digital environment, but how that authority is exercised and what legal safeguards constrain it.

8. Conclusion

The recent jurisprudence of Kenya, Uganda and the East African Court of Justice reveals a developing legal framework for disputes concerning digital communication and civil society. The cases do not establish a single regional doctrine. Their outcomes differ, and the legal bases of decision vary.

Nevertheless, several recurring considerations are apparent. Courts have examined whether criminal offences affecting digital communication are sufficiently precise; whether restrictions on expression satisfy constitutional or Treaty-based requirements; whether legislative procedures have been followed; and whether administrative interference with communications infrastructure has an adequate legal foundation.

The Kenyan decisions in BAKE and Law Society of Kenya, Uganda’s decisions in Karamagi and Alternative Digitalk, and the EACJ’s decision concerning Tanzania’s online-content regulations collectively demonstrate that digital constitutionalism is developing through ordinary constitutional and administrative principles applied to new technological circumstances.

For civil society, the practical significance is substantial. Digital platforms increasingly function as spaces for journalism, association, political discussion, public accountability and access to information. Restrictions upon those spaces therefore engage legal interests extending beyond individual communications. At the same time, States retain legitimate interests in addressing cybercrime, protecting privacy, safeguarding children and regulating digital services.

The emerging jurisprudence suggests that the central legal question is therefore one of institutional balance: whether the State’s regulatory objective is pursued through sufficiently precise laws, lawful procedures and proportionate measures that preserve the conditions necessary for the exercise of fundamental rights. That question, rather than an abstract opposition between State sovereignty and civil society, provides the more precise framework for understanding East African digital constitutionalism.

Footnotes

1. Simon Kemp, ‘Digital 2025: Kenya’ (DataReportal, 2025); Simon Kemp, ‘Digital 2025: Tanzania’ (DataReportal, 2025).

2. Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR) (6 March 2026) paras 134–141, 153.

3. Karamagi and Another v Attorney General (Constitutional Petition No 5 of 2016) [2023] UGCC 2 (10 January 2023) pp 12–16; Alternative Digitalk Limited and Others v The Attorney General (Consolidated Constitutional Petitions Nos 34, 37 & 42 of 2022) [2026] UGCC 3 (17 March 2026).

4. Legal and Human Rights Centre and Others v Attorney General of the United Republic of Tanzania (Reference No 30 of 2020) [2026] EACJ 7 (31 March 2026) (First Instance Division).

5. Amnesty International Togo and Others v Togo (ECW/CCJ/APP/61/18; ECW/CCJ/JUD/09/20) [2020] ECOWASCJ 59 (25 June 2020).

6. Treaty for the Establishment of the East African Community (adopted 30 November 1999, entered into force 7 July 2000) arts 6(d), 7(2), 8(1)(c).

7. Computer Misuse and Cybercrimes Act 2018 (Kenya) ss 22–23.

8. Computer Misuse Act 2011 (Uganda) s 25.

9. Cybercrimes Act 2015 (Tanzania); Electronic and Postal Communications (Online Content) Regulations 2020 (Tanzania).

10.  BAKE (n 2) paras 1–4.

11.  ibid paras 134–135.

12.  ibid paras 136–141.

13.  ibid para 153.

14.  Karamagi (n 3) pp 1, 7–9.

15.  ibid pp 8–9.

16.  ibid pp 12–13.

17.  ibid p 15.

18.  ibid pp 15–16.

19.  Alternative Digitalk (n 3).

20.  ibid, judgment on compliance with rule 24(3) of the Rules of Procedure of Parliament and arts 88–89 of the Constitution.

21.  ibid, final orders concerning the Computer Misuse (Amendment) Act 2022 and ss 11, 23, 26, 27, 28 and 29 of the Computer Misuse Act 2023 Edition.

22.  ibid, final declarations concerning ss 162–163 of the Penal Code Act.

23.  ibid, consideration of art 19(3)(a) of the International Covenant on Civil and Political Rights and art 9 of the African Charter on Human and Peoples’ Rights.

24.  ibid.

25.  ibid, final orders.

26.  Legal and Human Rights Centre (n 4).

27.  ibid.

28.  ibid.

29.  International Commission of Jurists Kenya Section & 6 others v Communications Authority of Kenya & 4 others, Constitutional and Human Rights Petition No HCCHRPET 276 of 2025 (High Court of Kenya, filed 13 May 2025).

30.  ibid.

31.  Republic & 2 others v Director General, Communication Authority of Kenya & 2 others; Kenya Union of Journalists & 2 others (Interested Parties) (Judicial Review E176 of 2025) [2025] KEHC 17496 (KLR) (27 November 2025).

32.  ibid, final orders granting certiorari and prohibition.

33.  ibid, reasoning concerning arts 33, 34 and 24 of the Constitution of Kenya 2010.

34.  Law Society of Kenya & 8 others v Attorney General & 17 others (Constitutional Petitions E671, E673, E677, E698, E705 & E716 of 2025 (Consolidated)) [2026] KEHC 9453 (KLR) (2 July 2026).

35.  ibid, final orders.

36.  Amnesty International Togo (n 5).

37.  ibid.

38.  ibid, discussion of internet access as a derivative means of exercising freedom of expression and the requirement of a legal basis for interference.

39.  BAKE (n 2) paras 134–141; Karamagi (n 3) pp 12–16.

40.  Alternative Digitalk (n 3); Legal and Human Rights Centre (n 4).

41.  Republic (n 31); Amnesty International Togo (n 5).

Caselaw

Alternative Digitalk Limited and Others v The Attorney General (Consolidated Constitutional Petitions Nos 34, 37 & 42 of 2022) [2026] UGCC 3 (17 March 2026)

Amnesty International Togo and Others v Togo (ECW/CCJ/APP/61/18; ECW/CCJ/JUD/09/20) [2020] ECOWASCJ 59 (25 June 2020)

Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR) (6 March 2026)

Karamagi and Another v Attorney General (Constitutional Petition No 5 of 2016) [2023] UGCC 2 (10 January 2023)

Law Society of Kenya & 8 others v Attorney General & 17 others (Constitutional Petitions E671, E673, E677, E698, E705 & E716 of 2025 (Consolidated)) [2026] KEHC 9453 (KLR) (2 July 2026)

Legal and Human Rights Centre and Others v Attorney General of the United Republic of Tanzania (Reference No 30 of 2020) [2026] EACJ 7 (31 March 2026)

Republic & 2 others v Director General, Communication Authority of Kenya & 2 others; Kenya Union of Journalists & 2 others (Interested Parties) (Judicial Review E176 of 2025) [2025] KEHC 17496 (KLR) (27 November 2025)

Table of Legislation

Computer Misuse Act 2011 (Uganda)

Computer Misuse and Cybercrimes Act 2018 (Kenya)

Computer Misuse (Amendment) Act 2022 (Uganda)

Cybercrimes Act 2015 (Tanzania)

Electronic and Postal Communications (Online Content) Regulations 2020 (Tanzania)

Penal Code Act (Uganda)

Treaties and International Instruments

African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

Treaty for the Establishment of the East African Community (adopted 30 November 1999, entered into force 7 July 2000)

Secondary Sources

Kemp S, ‘Digital 2025: Kenya’ (DataReportal, 2025)

Kemp S, ‘Digital 2025: Tanzania’ (DataReportal, 2025)