Ukiona cha mwenzako chanyolewa, chako kitie maji. Kenyans have long repeated this proverb with a knowing smile, often directed outward. In recent years, images of neighbouring states shutting down social media platforms, throttling internet access during political unrest or arresting citizens over posts. The prevailing response has been a sense of superiority rooted in the belief that Kenya’s constitutional order and democratic safeguards place it beyond such excesses. Yet the legal developments of 2025 suggest that this confidence may be increasingly misplaced. The reality Kenya once observed from afar is no longer theoretical. It is being legislated.
There are two pivotal pieces of legislation currently shaping Kenya’s legal landscape: the Computer Misuse and Cybercrimes (Amendment) Act, 2025 and the Privatisation Act, 2025. Examined together, these laws reveal a troubling pattern of steady recalibration of constitutional safeguards under the guise of regulation and reform.
The Computer Misuse and Cybercrimes (Amendment) Act (Act No. 17 of 2025) significantly expands the authority of the relevant Committee, granting it the power to issue directives rendering any website or application inaccessible if deemed to promote unlawful activities, religious extremism, or cultism. While these objectives are framed as protective, the mechanisms employed raise profound constitutional concerns.
At the centre of these concerns is the absence of judicial oversight. The Act does not specify whether determinations of unlawful content require proof before a court of law. This omission allows the Committee to operate simultaneously as investigator, prosecutor and judge. An arrangement fundamentally inconsistent with the principles of natural justice and Article 50 of the Constitution, which guarantees the right to a fair hearing. By bypassing judicial scrutiny, the executive assumes quasi-judicial powers, undermining the doctrine of separation of powers.
Perhaps the most contentious provision is Section 27, commonly referred to as the “suicide clause.” This section criminalises conduct that is “likely to cause” another person to commit suicide. Crucially, it places an obligation on communicators to assess the psychosocial state of the recipient of their communication. This requirement is both speculative and overbroad. Criminal liability traditionally demands certainty, yet
this provision expects ordinary wananchi to determine another person’s mental condition. Such an expectation introduces dangerous ambiguity into criminal law.
These issues have not gone unchallenged. Petitioners including the Law Society of Kenya (LSK) and Article 19 have moved to court, arguing that the Act unjustifiably limits freedom of expression under Article 33 and violates constitutional boundaries by vesting judicial-like authority in the executive. The implications are clear: speech, particularly online speech, is increasingly subject to administrative control rather than judicial determination.
The Privatisation Act, 2025 (Act No. 18 of 2025) was enacted to cure the defects of the failed 2023 Privatisation Act, which had been declared unconstitutional for lack of public participation. However, the 2025 Act largely replicates the structural weaknesses of its predecessor while entrenching executive dominance.
Historically, the 2005 privatisation framework established a Privatisation Commission with distinct oversight functions, though it was criticised for being slow. The 2023 Act marked a dramatic shift by centralising power in the Cabinet Secretary, a move that ultimately rendered it unconstitutional. Rather than restoring institutional balance, the 2025 Act reintroduces vague consultation language without prescribing mandatory procedures or feedback mechanisms. Public participation is acknowledged in theory but hollowed out in practice.
Executive overreach is further entrenched through Cabinet Secretary dominance in drafting and approval processes, effectively sidelining the independence of the Privatisation Authority. The opacity deepens with regard to appointments: board members are appointed by the President and the Cabinet Secretary without Parliamentary vetting, eliminating a critical layer of democratic accountability required under Chapter Six of the Constitution.
The Act also contains strategic loopholes with far-reaching consequences. Section 4(c) excludes transactions where government shareholding falls below 50%, meaning entities such as Safaricom or Kenya Airways could be sold without parliamentary oversight. Even more concerning is the provision allowing “balance sheet reorganisation,” which can be used as a backdoor mechanism to deliberately reduce government shareholding below the 50% threshold and evade scrutiny altogether.
Beyond executive dominance, the Privatisation Act poses a direct threat to devolution and public land protections. It permits the transfer of public land, contradicting Article 68, which mandates Parliament to protect public land. Despite this, the Senate was excluded from the legislative process, even though the Act directly affects county assets. This exclusion violates Article 96, rendering the process constitutionally defective.
Specific assets identified as being at risk include Sunset Hotel in Kisumu County, Mt Elgon Lodge in Trans Nzoia County and Golf Hotel in Kakamega County. These are not abstract holdings but tangible county interests, the disposal of which without Senate involvement undermines the very foundation of devolved governance.
An illustration of how the Act operates would be through the proposed privatisation of Kenya Pipeline. The intended lifecycle begins with Cabinet approval of a session paper, followed by deal structuring, likely through an Initial Public Offering (IPO) on the Nairobi Securities Exchange for a 65% stake, with priority given to Kenyan investors. Implementation is projected to culminate in a listing by March 2026. This case study underscores how expansive executive discretion translates into concrete economic outcomes with minimal legislative oversight.
The Acts collectively violate Articles 10 and 118 by failing to ensure meaningful public participation, a failure compounded by the absence of Kiswahili versions of the Bills. Article 35 is undermined through the creation of a secrecy regime under Section 65, which criminalises unauthorised disclosure of information. Article 201, particularly the principle of inter-generational equity, is compromised by opaque privatisation processes. Finally, the exclusion of the Senate under Article 96 renders the legislative process fundamentally flawed.
This analysis is not merely a critique of two statutes, but a warning. The legal mechanisms that once seemed distant are no longer unfolding elsewhere; they are being normalised at home. Notwithstanding their unconstitutionality, ignorance remains no defence in a court of law. Ultimately, it seems, he who pays the piper …