BAKE to Challenge the constitutionality of the Computer Misuse and Cybercrimes Act

The Bloggers Association of Kenya is set to challenge the legality of the controversial Computer Misuse and Cybercrimes Act.

Below is their statement:

“The Bloggers Association of Kenya (BAKE) has reviewed the Computer Misuse and Cybercrimes Act, 2018 and affirms that this piece of legislation is retrogressive to a country that espouses, defends and thrives in media freedoms. Several provisions of the law not only infringe on the Constitution but also international standards and statutes on freedom of expression and freedom of the media.

Specifically, the following sections are of great concern;

• Section 3 (d) on the Objectives of the Act negates the very purpose it seeks to enhance. In many ways, this law fails to protect rights to privacy, freedom of expression and freedom of information.
• The National Computer and Cybercrimes Coordination Committee lack oversight in its representation as it is solely from the government. Industry needs representation to articulate and advance stakeholder interests. The Director who shall be the secretary to the committee lacks a vote meaning he or she will only take direction from committee members who are heads or appointees of the respective government agencies.
• Section 16 and 17 that touch on unauthorized interception, unauthorized access and unauthorized interference are meant to stifle whistleblowing culture and practice in the country. It should be reminded that that the embezzlements at Chase Bank and National Bank would not have been made public were it not for Kenyans of goodwill who provided the information to Kenyans online. While high ranking government officials blamed bloggers for publishing and sharing the information, some even calling for the regulation of bloggers, the information was accurate. It came to pass and relevant authorities are today investigation and in some cases, like National Bank, found and fined the culpable individuals. These sections will curtail public vigilance and throttle free access of information, necessary to protect public trust, grow our democracy and ensure corrupt individuals are put behind bars.
• Section 22, while seeking to address fake news, or false publication which is an international growing concern, defining what constitutes ‘false’ is problematic. It is not only problematic that the Act fails to define it, but also in practice, giving fertile grounds for individuals in power to use and misuse it to arrest, intimidate and threaten bloggers and Kenyans online. In addition, having a penalty of Ksh. 5 million and two years’ imprisonment is meant to stifle freedom of expression. Punitive provisions are often used to bully people from enjoying rights they have.
• Section 23 on the publication of false information lacks clarity. What the state for all its intent and purpose could define as possibly causing panic could be regarded by the general public as ridicule and genuine criticism. In addition, it can be satirical, for instance by cartoonists. Good governance including political accountability and transparency issues that Kenyans yearn for will soon be a thing of the past if this provision is unchecked.
• Section 37 on the wrongful distribution of obscene or intimate images fails to comply with limitations on freedom of expression. It seeks to create new limitations not contemplated in the Constitution.

BAKE reiterates that freedom of expression is not absolute. Article 33 (2) expressly provides that the right does not extend to propaganda for war; incitement to violence; hate speech; or advocacy of hatred. These are the legal limitations that any Statute must respect.

It should be noted that the High Court found Section 29 of the Kenya Information and Communications Act unconstitutional for lack of definition of the key operative words like “indecent”, “obscene”, “anxiety” among others. Justice Mumbi Ngugi asserted that “the words are so wide and vague that their meaning will depend on the subjective interpretation of which officer (police, prosecutor, and magistrate).

In this Act, words like ‘false’, ‘panic’, ‘obscene’, ‘misleading’, and ‘fictitious data’, cannot pass the legal test.

“While there are other provisions that are vague and need redress, these ones listed directly affect bloggers. We must guard our hard-earned rights and freedoms. Kenyans must stand up to protect, defend and uphold the Constitution as Article 3 expects,” said BAKE Chairman Kennedy Kachwanya.

In view of the above, the association has engaged a lawyer with the intention of challenging this law as soon as possible. “The chilling effect this law portends needs to be arrested,” Kachwanya added.