Whose voice matters? Njeri’s case and the struggle for public discourse in Kenya

A court ruling is expected on June 20 on her alleged disruption of public participation and violating Computer Abuse and Cybercrimes Act.

Her crime

Njeri created a website called ‘Civic Email’ to mobilise a reaction to the Finance Bill, 2025. The platform was designed to allow users to easily generate and send complaints about the Bill to key parliamentary officials, including the National Assembly Clerk and the Finance committee. Her objective was to facilitate public participation and ensure citizens' voices were heard regarding the proposed legislation. 

Njeri's action came a year after a similar Finance Bill sparked mass protests, largely organised through online platforms. She reportedly flagged clauses in the new Bill that she believed would lead to a higher cost of living and took issue with a proposal to allow the Kenya Revenue Authority access to personal data without a court order, arguing it would undermine privacy rights.

Her charges

Njeri was arrested on Friday, May 30, and subsequently charged with "unauthorised interference with a computer system" contrary to Section 16 of the Computer Misuse and Cybercrimes Act, No. 5 of 2018. The prosecution alleged that her programme "automatically generated and sent mass emails" to the official Finance committee, "thereby interfering with the normal functioning of the systems".

What the Law says

The Computer Misuse and Cybercrimes Act (CMCA) of 2018 is the primary legislation addressing cyber-related offences. Assented to on May 16, 2018, and enacted on May 30, 2018, the Act aims to establish various offenses related to computer systems; enable timely and effective detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes.

It also aims to facilitate international cooperation in dealing with computer and cybercrime matters; and protect the rights to privacy, freedom of expression and access to information as guaranteed under the constitution.

Her defence

Njeri's high-profile defence team, which includes former Chief Justice David Maraga and prominent lawyers such as Eric Theuri, has strongly dismissed the charges, arguing they are unconstitutional and politically motivated.

They contend that the email address used by Njeri's platform was provided by Parliament specifically for public submissions on the Finance Bill. Therefore, sending emails to this designated address cannot constitute "unauthorised interference" or a disruption of normal functioning, they said.

Maraga condemned her arrest last Friday, noting that Monday was a public holiday, suggesting it was designed to "torture her" by denying her prompt legal access over a long weekend.

The prosecution's argument

The prosecution, led by Victor Owiti, maintains the charge sheet clearly outlines a legally recognised offence. Their argument hinges on the claim that Njeri's platform, by automatically generating and sending mass emails to the official Finance committee's system, interfered with its normal functioning. They see this as an act of "spamming" that disrupted parliamentary processes.

What is in (Amendment) Bill?

While Njeri was charged under the existing Computer Misuse and Cybercrimes Act of 2018, it's important to note there is a Computer Misuse and Cybercrimes (Amendment) Bill, 2024, currently under consideration. This amendment Bill seeks to update the legal framework to address evolving cyber threats and introduce new clauses. It also touches on prohibiting the use of electronic media to promote terrorism, extreme religious or cult activities and sharing of pornography.

However, critics, including legal experts, have raised concerns about the Bill's potentially ambiguous wording, particularly regarding definitions such as "virtual account" and the scope of "detrimentally affects" in cyber harassment. Such ambiguity could lead to arbitrary enforcement and stifle legitimate online activities.

The primary responsibility to educate the public about proposed legislation, including its contents and implications, lies with Parliament and the government. This is enshrined in the constitution, particularly Article 118(1)(b), which mandates Parliament to facilitate public participation and involvement in its legislative and other business. This includes ensuring easily understandable summaries and explanations of complex legal texts are available.

Public participation, as specified in the constitution, allows citizens to submit written feedback and opinions on proposed bills to parliamentary committees, attend public hearings organised by Parliament to present their views orally, petition Parliament on any matter within its authority, including the enactment, amendment, or repeal of legislation and organise, rally and mobilise others for or against a Bill.

These actions are not only permissible but are fundamental to a democratic society where citizens actively participate in their governance. The spirit of public participation is to foster dialogue and ensure laws reflect the aspirations and concerns of the populace.

Kenya has a history of citizen-led public participation and activism influencing legislation, often with significant public outcry. The most recent and prominent example before Njeri's case was the widespread public outcry and protests against the Finance Bill, 2024. These protests were largely organised online, with activists using social media platforms to educate the public on the proposed tax hikes and their potential impact. The significant public pressure led to some amendments and reconsiderations by the government.

While the state appears intent on curbing dissent and the court is awaited to make a ruling on June 20, the show of solidarity by Kenyans – on social media and by packing the court house – is telling: Njeri's well-intentioned crime is more beneficial to the public than the ruling class's noise and clamour, touting government projects.

The writer is a sub-editor with The Star