Financial Act 2018 Controversy: Bloggers Association to Challenge Computer Crimes Provisions

The Bloggers Association of Kenya (BAKE) is concerned that the government has reintroduced sections of the Computer Misuse and Cyber Crimes Act, (2018) that were suspended by the High Court.

BAKE challenged the law that was assented to the president back in August 2018 and it led to Justice Chacha Mwita issuing a ruling that suspended clauses 22 and 23 on false publications. The grounds were that the act had failed to conclusively define fake or false news, which left a gap that could be used as a tool to silence the media.

This time, the challenge on the Finance Act that was signed by President Uhuru last week is banked on several sections that come with the same provisions as the Cybercrimes law.

“This move compels us to seek an amendment to the current case we are pursuing against the Cybercrimes to include these new provisions,” noted the association in a statement.

BAKE has identified the specific sections of the Finance Act 2018, which includes:

47. The Tax Procedures Act, 2015 is amended by inserting the following new sections immediately after section 103—29 of 2015.

Unauthorized access or improper use of computerized tax system.

103A. (1) A person who—

(a) knowingly and without lawful authority, by any means, gains access to or attempts to gain access to any computerized tax system;

(b) having lawful access to any computerized tax knowingly uses or discloses information obtained from such system for a purpose that is not authorized; or

103B. (1) A person who knowingly —

(a) falsifies any record or information stored in any computerized tax system;

(b) damages or impairs any computerized tax system; or

(c) damages or impairs any duplicate tape or disc or other media on which any information obtained from a computerized tax system is held or stored otherwise than with the permission of the Commissioner, commits an offense.

(2) A person convicted of an offense under subsection (1) shall be liable to imprisonment for a term not exceeding three years, or to a fine not exceeding eight hundred thousand shillings, or to both.

A decision on the suspension of 26 sections of the Cybercrimes law will be made on 1st October following an appeal by the Attorney General.

Meanwhile, the association notes that it is worrying about how the government is already running ahead to duplicate certain sections while the courts’ decision is pending.

“BAKE will not sit back and allow the government to take back hard-earned freedoms. On October 1st, 2018, while High Court Judge Wilfrida Okwany will be making her decision on the case, we shall apply for an amendment to the case to add these provisions,” they concluded.