The fight against controversial computer law now headed to Court

?The State is headed for a legal battle with critics of the controversial Computer Misuse and Cyber-Crimes Act, 2018, who want the Judiciary to declare it unconstitutional.

Lawyers, bloggers, editors, journalists and the civil society are some of the players preparing to file petitions in court over the law that they insist will stifle freedom of expression.

The Law Society of Kenya (LSK) noted that the law infringes on human rights such as the right to privacy, freedom, conscience and right to information. Boniface Akusula, convener of public litigation committee at LSK, said they will be challenging the law as it “smirks of unconstitutionality.”

Mr Akusula said they will try to convince the courts to declare the new law, which also criminalises spreading of fake news, null and void. They are also concerned that the law shifts the burden of proof on the accused. “It cannot be the duty of an individual to enforce the law,” he said.

Bloggers, through the Bloggers Association of Kenya (Bake), will also be challenging the law on two grounds: Failure of the Act to define what is fake news, which in essence, leaves the State to use a broad brush in deciding what is fake news.

Bake will also argue that the law makes it difficult for them to do investigative stories as it scares away whistle-blowers. “Anybody who says something and a politician does not like it, it will be declared fake news,” said Bake chair Silas Kachwanya.

Ministry of Interior

Kenya Union of Journalists Secretary General Erick Oduor was concerned that Section 23, provides for a Sh5 million fine or a jail-term of three years for spreading false publications and criminal libel which had been declared unconstitutional by the Courts. He added that Section 22, will stifle freedom of the media and expression.

Mr Oduor pointed out that since it is the Ministry of Interior that is responsible for enforcing the law, police will have more powers to monitor the media. “Once the papers are ready, we will be moving to court,” he said.

Nyakundi Nyamboga, a former journalist and lawyer said the law is retrogressive as it “criminalises communication in various fora,” a fact declared unconstitutional by the High Court in February 2017. “If you were not on a path to hurt somebody, why should you be sent to jail?” wondered Dr Nyakundi who said the position all along has been that a journalist can only be made to pay damages.

Those found guilty of spreading fake news will be liable to a fine of Sh5 million or three years behind bars.

It is a punishment that human rights activists have termed harsh, because the authorities have “unfettered discretion to prosecute individuals for expression and communication that is perfectly legitimate and lawful,” according to Article 19.

Cyber-bullies and cyber stalkers will spend 10 years behind bars if they can’t raise a hefty fine of Sh20 million.

Computer fraud will leave the culprit Sh20 million poorer or have him spend a decade in jail.

Child pornographers will be slapped with a Sh20 million fine or 25 years in jail.

The Act also criminalises illegal devices and access codes, and perpetrators will be slapped with a fine of Sh5 million or three years in jail.

International Centre for Policy and Conflict Executive Director, Wainaina Ndung’u, said the law must not shield public officials and any other state office holders from public scrutiny and accountability. “It should not hinder and or target whistle blowers,” said Wainaina.

“We note that freedom of expression and flow of information empowers community members to expose maladministration and corruption and demand better service delivery from those elected to serve the people. When the right to freedom of expression is not protected, it is hard to hold public officials accountable,” he added.

ICT Cabinet Secretary Joe Mucheru in a TV interview, while agreeing that the fines were heavy, described the law as “one of the best in the world as far as computer and cybercrimes are concerned.”

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