Careful on that tweet, it could cost you Sh5m

With a single stroke of a pen this week, President Uhuru Kenyatta slid the country to the dubious league of 60 countries which have taken advantage of the "fake news" phenomenon to criminalise free speech.

The net cast by the Computer Misuse and Cyber-Crimes Act, 2018 will catch not only authors of fake news but also innocent promoters of unverified content spread through mobile-based social media platforms.

It is true that in recent times, the truth has been playing catch-up against rumour, with latest research showing that five in 10 Twitter users don’t bother to check info posted during a natural disaster before sharing it.

But experts doubt that sweeping criminalisation would calm the storm of fake news.

If anything, says Victor Bwire, the Deputy Chief Executive Officer and Programmes Manager at the Media Council of Kenya, some people will simply go under and continue posting inflammatory information from a hidden domain, probably one that is hosted outside the country.

“Some people are outside of this country; how do you arrest them?" Bwire posed.

From as early as when the law was being processed in Parliament, Article 19, a legal forum on freedom of expression and information, warned that it would “chill freedom of expression online in Kenya.”

"In criminalising access to 'protected computer system', the law hides behind such vague and open-ended functions protecting Kenya’s “international relations” or “public safety” to reach a conclusion of culpability," said Article 19.

Its protestations went unheeded and law-makers, carried away by the strong urge to crush fake news, passed the law. But all that is now water under the bridge. Following its enactment, the Government will have the monopoly to define what the truth is in public discourse, according to Article 19.

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

Cyber-bullies

It is a punishment that human rights activists have termed harsh, particularly 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 whole decade in jail.

Child pornographers will also be hit with a fine of Sh20 million or 25 years in jail.

Computer Misuse and Cyber-Crimes Act also criminalises illegal devices and access codes, hitting the perpetrators with a fine of Sh5 million or three years in jail.

All indications are that the first victims of this piece of legislation will be minorities, political oppositions, civil society and academics. However, the law will also have a huge impact in the operation of media, especially investigative journalism.

Even those who agree with the whole spirit of legislation like lawyer Kamotho Waiganjo doubt that it will pass the constitutional test. He says the legislation was long overdue but may have overreached itself.

“If the Bill allows authorities to access people’s gadgets and cellphones, then there is a problem,” Waiganjo said

He, however, insisted that the law was in line with emerging challenges brought by the digital platforms. The focus of the law, he said, was cyber-related offenses. "There is a new phenomenon that requires a new legal regime," he said. Waiganjo was a member of the Committee of Experts that midwifed the new Constitution.

He said the law was particularly strong on breach of people's reputation and privacy. "Even though the Constitution is strong on right of communication, that right can be limited," he said.

Mr Bwire said they agreed with the spirit of the law as far as clamping down on online pornography and fake news were concerned. He, however, said some fines in the Act were too high and their effect would “stifle freedom of expression.”

He said the laws will discourage whistle-blowers from coming out, fundamentally tinkering with the substance of investigative journalism. Section 11 (3) of the law makes it an offense to gain access or intercept data.

Bwire is concerned with over-criminalisation, saying education rather than laws would be a better solution. “People should be educated on the impacts of the new digital platforms.”

He said while Kenya has laws on almost everything, it has not translated into less crimes. “You can’t legislate against everything,” Bwire said.

Nyakundi Nyamboga, a former journalist and now a lawyer said this law is retrogressive as it "criminalises communication in various fora," a fact that was 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 Nyakundi who said that the position has been that a journalist can only be made to pay damages. He also said that it was only a matter of time before law was declared unconstitutional.

In a paper, Article 19 argued that limitation of freedom of expression must consider rights or reputations of others, protection of national security, public order, public health or morals; there must be a pressing social need for the restriction.

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