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Proposed changes to Cybercrimes Act contravene the Constitution

By Demas Kiprono | June 11th 2021

The National Assembly recently published amendments to the Computer Misuse and Cybercrimes Act.

The Bill seeks to criminalise the production, distribution, downloading, delivering, transmission, dissemination, lending for gain, circulation of pornographic content. It goes further to criminalise possessing pornography in a computer system.

The Bill raises certain fundamental issues regarding the use of laws to sanction purely moral issues. In its memorandum of objects, the Bill claims that the proposed amendments do not affect the Bill of Rights. It is noteworthy that any law that touches any matter on the Bill of Rights triggers Article 24 of the Constitution that sets out very strict parameters for a person seeking to limit any right or fundamental freedom.

Seeing that the law seeks to regulate information regarding what people can seek, receive, keep in their computer systems and impart or distribute, Article 24 is automatically triggered. This means that it is upon the person seeking to make these changes to justify why they seek to limit access to pornographic content to adults and convince Kenyans or the courts, should it get there, that the measures are necessary and proportionate in an open and democratic society; and that they pursue a legitimate aim.

Under international law, it is generally agreed that another ground for justifiably limiting freedom of expression and access to information includes the protection of children from exploitation. However, adults are allowed to express themselves and access content of any nature, via any media and frontiers.

Other provisions in the Bill seek to make it an offence for a person to publish or transmit electronic messages that are likely to cause persons to join or participate in terrorist activities. Interestingly, Section 27 of the Prevention of Terrorism Act already provides for this – which begs the question, what is the point of legislating on matters that already been legislated on?

Another part of the proposed law is the preponderance of using the word ‘likely’ when prescribing criminal conduct. This flies in the face of the legal requirement that laws must be clear and concise to ensure members of the public are certain about what conduct is considered unlawful and to ensure police officers, prosecutors, judges and magistrates apply the laws uniformly. Overly broad and vague laws are fodder for abuse.

To illustrate this concern, the Bill introduces the offence of publishing content that is likely to cause other persons to join or participate in unlicensed and extreme religious or cult activities. Who will dictate or determine what ‘extreme or religious cult activity’ entails? Moreover, does it sit well with freedom of conscience, belief and opinion protected under Article 32?

The proposed amendments are overkill, unnecessary, disproportionate and therefore unconstitutional. Seeking to regulate what people do in their private space, on their private devices, is invading fundamental rights protected under the law. It would be understandable if the amendments were trying to protect children from sexual exploitation because this is a recognised ground for limiting certain content.

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