Kenya: Court Dismisses Bloggers' Cybercrime Law Case

(file photo).
20 February 2020

High Court judge James Makau has dismissed a case filed by the Bloggers Association of Kenya (BAKE) that challenged the constitutionality of the Computer Misuse and Cybercrime Act.

He issued the judgment on Thursday morning, saying the petition was unwarranted and had lifted sections which had earlier on been suspended by the court.

BAKE had moved to court to challenge the law about two years ago.

The judgment was set to be delivered on January 30 but the matter was postponed to today by Justice Makau.

In the case that dragged the State to the corridors of justice, bloggers sued the Attorney-General, the Speaker of the National Assembly, the Inspector-General of Police and the Director of Public Prosecutions.

The matter spilled over to the corridors of justice when President Uhuru Kenyatta signed the Bill into law on May 16, 2018 amid calls to revert it back to Parliament to ensure its provisions are constitutional and do not violate the right to media freedom and expression.

But in May 2018, Justice Enoch Chacha Mwita suspended 22 sections that touched on child pornography and its penalties, publishing of false information, fraudulent use of electronic data, interference with computer systems and data, among others.

In October 2018, Lady Justice Wilfrida Okwany dismissed the government's request to have the law enforced, saying the temporary order issued earlier by her colleague was justified.

She ruled that the injury complained of has to be balanced with the legal requirement that all laws pass the constitutional validity test.

According to the bloggers, the disputed law infringes on and threatens freedom of expression and the right to privacy, property and a fair hearing.

The disputed new law imposes hefty fines and long prison terms for cyber bullies and fake news dealers.

It also targets journalists, media houses, social media users, bloggers and other Internet users.

The Kenya Union of Journalists and media freedom lobby group Article 19 are listed as interested parties in the case. A Mr Geoffrey Maina also filed a similar suit earlier.

However, the Solicitor General also filed a suit seeking to have the order set aside or varied.

The government claimed that both public and private Kenyan citizens remain exposed from the failure to adequately protect data belonging to European Union subjects in compliance with the General Data Protection Regulations (GDPR) which was to come into force on May 25, 2018.

Some of the offenses prescribed by the disputed law include unauthorised interference to a computer system, programme or data, intercepting of electronic messages or money transfer, fraudulent use of electronic data, intentionally publishing false or fictitious misleading data, publishing information in print, broadcast which causes panic, chaos or violence and the one that relates to child pornography.

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