On July 1, 2026, Kenya's Cabinet Secretary for Information, Communications and the Digital Economy gazetted the Kenya Information and Communications (Consumer Protection) Regulations, 2026 — the first comprehensive update to the telecom consumer protection framework since 2010. The new rules are a genuine advance: Safaricom, Airtel, and other licensed operators must now establish an automatic outage credit system, compensating subscribers whenever service fails through no fault of the customer. Violations carry criminal penalties of up to KES 1 million or six months in prison.
But the force majeure clause creates a problem that matters most precisely when the entity ordering the outage is the regulator itself.
The Exemption That Could Swallow the Rule
The 2026 regulations exempt licensees from compensation obligations when outages result from "events beyond their control." Standard commercial language — and usually uncontroversial. Floods, international undersea cable failures, or third-party construction strikes clearly qualify. The problem arises when the disruption is a regulatory directive that a licensee is legally bound to obey.
Kenya's Communications Authority has a documented three-year pattern of ordering telcos to suspend access to Telegram during the Kenya Certificate of Secondary Education examinations. In 2023, the block ran for eight days in November without any formal public announcement — the CA never confirmed it was happening. In November 2024, the CA issued a formal directive to Safaricom, Airtel, Telkom, and Jamii Telecommunications to suspend Telegram between 7:00–10:00 a.m. and 1:00–4:00 p.m. every weekday until November 22. In 2025, Telegram was restricted again on the first day of KCSE exams — a third consecutive year of the same playbook.
Under the 2026 regulations, none of these outages would clearly trigger compensation obligations. A CA directive is, by definition, an event the licensee cannot refuse. Framed that way, every government-ordered suspension qualifies as force majeure. The subscriber — stripped of connectivity during working hours — receives nothing, and the telco faces no liability.
The Cost Is Not Hypothetical
NetBlocks, drawing on World Bank and ITU economic indicators, estimated that Kenya's 2023 exam-period Telegram block cost the country $27 million (Sh4.2 billion) across eight days — approximately Sh537 million per day of downtime. Kenya ranked sixteenth among 25 countries that suffered internet or social media restrictions that year.
The case for the CA's approach deserves a fair hearing before dismissal. Kenya's National Examinations Council flagged 18 active Telegram channels circulating leaked papers before the 2024 KCSE cycle began. Platform blocking is a fast-deployable tool when exam integrity is under direct, documented attack, and regulators from Algeria to Jordan have made the same calculation under similar political pressure. Defenders of the practice argue that the alternative — allowing organised leaking rings to operate openly — imposes systemic costs on hundreds of thousands of students sitting legitimate exams.
But the evidence consistently undermines the intervention's efficacy. OONI's forensic analysis of 2023 and 2024 KCSE-period blocking documented IP-level and DNS-level restrictions that swept broadly across all Telegram traffic — business communications, civil society coordination, and personal messaging entirely unconnected to exam fraud. Cheating networks migrated to alternative platforms within hours of each block. The measure reliably penalises millions of legitimate users in pursuit of a minority that adapts faster than regulators can enforce.
A High Court Order That Remains Unresolved
The legal challenge is already under way. On May 14, 2025, the High Court of Kenya issued interim conservatory orders in Petition HCC/HR/PET 276/2025, brought by ICJ Kenya, the Bloggers Association of Kenya, Paradigm Initiative, the Kenya Union of Journalists, Katiba Institute, the Law Society of Kenya, and CIPESA. Justice Bahati Mwamuye ruled that the issues raised were serious enough to warrant immediate protection, and barred the government, the Communications Authority, Safaricom, and Airtel from interfering with internet access pending full adjudication.
The petition challenges the 2023 and 2024 exam-period blocks as violations of Articles 33, 34, and 35 of Kenya's Constitution — freedoms of expression, media, and access to information — arguing that any restriction must satisfy the legality, necessity, and proportionality tests set out in Article 24. A full hearing was scheduled for June 2025, with the case still active.
The injunction matters: a CA-ordered Telegram block during the 2026 KCSE season, which runs October 19 to November 20, would potentially put the regulator in contempt of an existing court order. That is a more powerful constraint than anything in the new consumer protection regulations. But interim conservatory orders are not final judgments. The actual prohibition on exam shutdowns rests on an unresolved petition — not a statutory bar or settled ruling.
What a Coherent Framework Would Look Like
The 2026 regulations are a meaningful improvement. The outage credit system, mandatory complaint tracking with 30-day resolution windows, and criminal penalties for non-compliance are real gains over the 2010 framework. But consumer protection is structurally incomplete when the largest category of deliberate service disruption — the government-ordered kind — sits outside its scope by default.
The fix is not complicated. The regulations should explicitly exclude directives issued by the Communications Authority or any government body from the force majeure definition. Operators should be required to disclose any government-mandated restriction within 24 hours of it taking effect, maintain auditable compensation records, and submit those records to the Authority. The CA, for its part, should be obligated to publish the statutory basis for any platform restriction before it takes effect — not after, and not never, as happened in 2023.
Access Now's #NoExamShutdown campaign, which names Kenya alongside Iraq, Algeria, Syria, Jordan, and Sudan, is timed to the October start of KCSE season. The campaign's demand — to keep the internet open, secure, and free during exams and beyond — is not a call to ignore exam fraud. It is a call for targeted, proportionate enforcement rather than a nationwide communications blackout that falls hardest on the millions of people who have nothing to do with exam cheating.
Kenya's 2026 consumer protection regulations move the needle. They stop short, however, of the one provision that would make the compensation framework credible: a force majeure definition that does not let the government step outside it.