The Bloggers Association of Kenya (BAKE) case that challenged Kenya's Computer Misuse and Cybercrimes Act 2018 has been dismissed by James Β Makau, a High Court Judge Β in Kenya. Justice Makau declared that the Computer Misuse and Cybercrimes Act 2018 law is valid in its entirety.

While handing down the judgement, Justice Makau stated that the 26 sections of the Act that were contested by BAKE were constitutional.

"We went to court because we were concerned that several provisions of the new law were unconstitutional and constituted an infringement on fundamental freedoms. In our opinion, 26 sections of the law threatened the freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing. This ruling is a blow to digital rights in Kenya, especially freedom of expression and freedom of the media," reads a statement by BAKE.

Fighting for freedom of expression in Kenya

BAKE along with the Kenya Union of Journalists (KUJ) challenged the Computer Misuse and Cybercrimes Act 2018 because they believed it would have serious implications for freedom of expression, freedom of the media and freedom of information once it is enforced.

During 2018, 26 sections of the Act were suspended following BAKE's petition. The 26 sections of the Computer Misuse and Cybercrimes Act that were suspended were:

Section 5 – Composition of the National Computer and Cybercrimes Coordination Committee
Section 16- Unauthorised interference
Section 17- Unauthorized interception
Section 22 – False publications
Section 23 – Publication of false information
Section 24- Child pornography
Section 27 – Cyber harassment
Section 28 – Cybersquatting
Section 29 – Identity theft and impersonation
Section 31 – Interception of electronic messages or money transfers
Section 32 – Willful misdirection of electronic messages
Section 33 – Cyber terrorism
Section 34 – Inducement to deliver electronic message
Section 35- Intentionally withholding message delivered erroneously
Section 36 – Unlawful destruction of electronic messages
Section 37- Wrongful distribution of obscene or intimate images.
Section 38- Fraudulent use of electronic data
Section 39- Issuance of false e-instructions
Section 40- Reporting of cyber threat
Section 41- Employee responsibility to relinquish access condes
Section 48 – Search and seizure of stored computer data
Section 49 – Record of and access to seized data
Section 50 – Production order
Section 51- Expedited preservation and partial disclosure of traffic data
Section 52 – Real-time collection of traffic data
Section 53- Interception of content data

The latest pronouncement by Kenya's High Court can be seen, as BAKE has alluded before, as a big blow to freedom of speech and freedom of the media in Kenya. The biggest worry, and as has been sometimes demonstrated in previous years by Kenya's government, is that the authorities are looking to clamp down on freedom of speech online. As such, this Act gives them many angles and methods from which to stifle freedom of expression especially on the Internet.

The Cybercrimes Law was signed into law by President Uhuru Kenyatta on 16th May 2018. In the same month, we filed a case (petition 206 of 2018) challenging the constitutionality of 26 sections of the Cybercrimes Act. In the case, we sued the Attorney General, Speaker of the National Assembly, Inspector General of Police, and the Director of Public Prosecutions (DPP). Article 19 and the Kenya Union of Journalists (KUJ) were enjoined in the case.

"We intend to appeal this decision immediately," concludes the statement by BAKE.

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