In April, the High Court in Nairobi ruled that Meta, the parent company of social media giants Facebook, Instagram and WhatsApp had a case to answer over its failure to regulate hateful, insightful and dangerous content on its platform at the height of Ethiopia’s civil war.
In a constitutional petition, Ethiopian researchers Abrham Meareg and Fisseha Tekle, and Kenya’s rights group Katiba Institute accused Meta of several violations of the Kenyan Constitution in the course of its operations in Kenya, and in the region.
The case alleges that Meta’s failure to deal with core safety issues particularly on Facebook, has fanned the conflict that raged for more than three years and claimed over 500,000 lives.
“The respondent’s algorithm recommends content that amounts to propaganda for war, hate speech, incitement to violence and advocacy of hatred to Facebook users in Kenya thereby violating their right to dignity under Article 28 of the Constitution and their right not to be subjected to any form of violence or subjected to psychological torture under Article 29 of the Constitution,” states Fisseha Tekle, a researcher for Amnesty International for Ethiopia and Eritrea in an affidavit.
According to the lawsuit, Meta’s failure to take down content that amounts to propaganda for war, hate speech, incitement to violence and advocacy of hatred has led to the loss of lives thereby violating the right to life as guaranteed under Article 26 of the Constitution.
The lawsuit seeks to have Meta pay Sh250 billion in damages with Amnesty International, Global Witness and Kenya Human Rights Commission (KHRC) listed as interested parties.
Other interested parties include the National Cohesion and Integration Commission (NCIC), Article 19 Eastern Africa, Kenya National Commission on Human Rights and the Law Society of Kenya.
Fundamental rights
In his ruling delivered on April 3, 2025, Justice Lawrence Mugambi stated that the issues raised in the case go beyond the interests of the parties involved and relate to the protection of fundamental rights and freedoms in a digital era. Thus, the case warranted the establishment of a bench by the Chief Justice Martha Koome.
“The issues raised are substantial and transcend the interests of the parties involved in the petition,” he stated in his judgement. “The Petition raises fundamental concerns on acts or omissions that may have been made regarding content posted on Facebook platform by content moderators based in Kenya that may impact on observance of human rights beyond Kenya through the use of social media.
“This in my view perfectly falls within the purview of this court’s jurisdiction to consider under Article 165 (3) (b) of the Constitution,” he stated. In response, Meta had sought to have the court dismiss the petition on the grounds that the High Court in Kenya lacked the proper jurisdiction to hear the case.
Associate General Counsel at Meta Emma Pagan said in a replying affidavit that Facebook is registered and governed by the laws of the State of Delaware and that the High Court in Kenya lacks jurisdiction to hear the case.
“She avers that the Kenyan Constitution does not have an extraterritorial reach hence cannot be invoked to address the petitioner’s claims,” states court documents on Emma’s affidavit.
“In this regard, she avers that the petitioners’ allegations arise from events that occurred within Ethiopia not Kenya.”
Pagan said the petitioners Meareg and Tekle were Ethiopian citizens and the subject Facebook accounts were created by the two while residing in Ethiopia and although Tekle works in Kenya, his allegations concern Ethiopia.
The case marks a significant turning point in terms of defining the liability of multinational tech platforms that operate in the country with little or no physical presence despite counting millions in subscribers and revenues.
Preferential treatment
As the fifth interested party, internet justice lobby group Article 19 states that Facebook’s preferential treatment of users in some countries as opposed to its treatment of Facebook users in Africa amounts to discrimination on grounds of race, and ethnic and social origin which is a violation of Article 27 of the Constitution.
“Are proprietors of social networking websites duty-bound to moderate content posted on their respective websites by the users of those websites,” states the lobby group in its submissions. “Are proprietors of social networking websites, in any e vent, liable for human rights violations arising from content posted on their respective websites by the users of those websites?”
This is not the first time that Facebook is coming under scrutiny in the role its social network plays in amplifying hateful discourse and disinformation.
The firm has been under scrutiny for the role it’s platform played in the genocide against the Rohingya Muslims in 2017, where more than 700,000 Rohingya fled Rakhine State after the Myanmar security forces launched a targeted campaign of murder, rape and burning of homes.
A report by the UN examined 43 pages on Facebook between July and December 2017 and found 36 of them posted hate speech against the Rohingya with 10,485 items with hate speech identified. But Facebook only removed these pages from its platform almost a year later in August 2018.
Kenya’s parliament has on several occasions raised the question of hate speech moderation on social media with platforms such as X, formerly known as Twitter, Facebook, WhatsApp and TikTok routinely drawing sharp focus.
According to Article 19, the case facing Meta in Ethiopia, regardless of its outcome, will have an impact on Kenya’s national security as it impacts on the responsibility of proprietors of social networking sites in the prevention and mitigation of security threats posed or multiplied by content posted on their sites.
“The determination of the subject substantive issues, if made either way, will affect the exercise of amongst other rights, the right of access to information, consumer rights, and freedom from discrimination, by millions of persons residing in Kenya (citizens and non-citizens) who consume content posted on Facebook and on other social networking websites,” states the lobby group in its submissions.
