Bloggers take on the state over harsh cyber crime law, win first round
The High Court has temporarily suspended 26 sections of the Cyber crime law.
Justice Enoch Chacha Mwita issued the directive on Tuesday in a case in which Bloggers Association of Kenya sued the Attorney-General, the Speaker of the National Assembly, the Inspector-General of Police and the Director of Public Prosecution over the Computer Misuse and Cyber Crimes Act 2018.
The Kenya Union of Journalists and Article 19, a lobby that deals with freedom of expression and information, are listed as interested parties in the case. Mr Geofrey Maina filed a similar suit last week.
The said sections are 5,16, 17, 22,23,24,27,28,31,32,33,34,35,36,37,38,39,40, 41,48,49 and 50 of the Computer Misuse and Cybercrime Act.
Some of the sections which have been suspended are those those that relates to various offenses stipulated in the disputed law.
They include unauthorised interference to a computer system, program or data, intercepting of electronic messages or money tranfer, fraudulent use of electronic data, intentionally publishing false or fictitious misleading data, publishing information in print, broadcast which causes panic, chaos or violence and the one that relates to child pornography.
FREEDOM OF EXPRESSION
According to the bloggers, the disputed law contains provisions which deny, infringe and threaten freedom of expression, media and persons besides the right to privacy, property and a fair hearing.
They alleged that there are currently about 51 million internet users who are at the risk of being arrested and prosecuted for unconstitutional offences.
“It is in the public interest that the coming into force of the Act be stayed pending the substantive hearing and determination of this case,” said Ms Mercy Mutemi, for the bloggers.
In the case documents, the bloggers pointed out that a good number of Kenyans now draw their livelihood from content creation online and that there have been previous attempts by the government to clamp down freedom of expression in that platform.
They alleged that Section 29 of the Kenya Information and Communication Act and Section 194 of the penal code were the ones famously used to punish freedom of expression offenders.
The two laws touched on criminal defamation and were declared unconstitutional by the High Court in February last year.
The bloggers claimed that the cybercrime law which comes into effect as from today, May 30, exactly 14 days after it was published in the Kenya Gazette, May 16, seeks to reintroduce the purged laws while imposing harsher restrictions.
They alleged that in 2016, at least 60 bloggers were arrested for exercising their freedom of expression online while several journalists were among those silenced, faced intimidation, harassed or killed.
In 2017, they alleged that the internet and especially social media platforms notably became effective channels for online activism, democracy and fight for social justice.
They claimed that sections of the disputed law contravenes the constitution, threatens various rights, that the procedure for enacting it lacked public participation and that it was inconsistent with some standing orders of the National Assembly.
They further claimed that it uses an ambiguous language yet it limits rights and fundamental freedoms hence it lacks the specificity required.
They argued that the disputed Act is likely to deny online users a source of income since that law vaguely introduces offences such as false publication, cyber harassment and unauthorized interference among others.
They also protested that the National Computer and Cybercrimes Coordination Committee is an all-male team hence flouts the two thirds gender rule.
“These attempts to constrict the online space prejudice the freedom of expression and media as well as right to privacy and information in a manner that is unjustifiably in an open democratic society such as Kenya,” said Ms Mutemi.
The disputed law deals with various offences such as cyberbullying, hacking and spreading of fake news, child pornography while it also attracts penalties of up to 25 years jail term.
Bloggers want several sections of this law declared invalid and that the IG as well as DPP barred from instituting criminal proceedings using it.