Two weeks ago, the High Court declared the Computer Misuse and Cybercrimes Act of 2018 constitutional. It had been challenged by Bloggers Association of Kenya and Article 19 Eastern Africa, an NGO, for what they termed as violating fundamental rights and freedoms, including freedom of expression, right to information and the right to privacy.

It is noteworthy that Justices Chacha Mwita and Wilfrida Okwany on two separate occasions suspended 26 sections of the law because, in their view, they threatened fundamental rights. In this digital era where communication, commercial transactions, and basic services are done online, it is important that the international community and countries identify standards of acceptable conduct for information and communication technology users.

Cybercrime law includes traditional crimes such as fraud, forgery, organised crime, money-laundering, child sexual exploitation, terrorism funding and activity and theft, except that these crimes are now perpetrated in cyberspace. They also include new criminal phenomena that can only exist in the cyberspace such as hacking or the purposeful unauthorised access to systems and data with the intention of causing changes and, or damage, disruptions of systems and services, and modifications of system data and programmes.

Fictitious data

Critics of the Kenyan Cybercrimes law argue that the law goes above and beyond to deal with free speech matters, as opposed to crimes that are peculiar to cyberspace with regard to ICT systems, transactions, and communication.

For instance, Sections 22 and 23 of the Act criminalise publishing false, misleading or fictitious data or information that is intended to cause others to act on them as authentic; and, publishing false information in print, broadcast, data or over a computer system that is calculated at causing panic or results in panic, chaos, or false publications. The law sets steep penalties such as a two-year jail term and a Sh5 million fine. Laws criminalising false or fake news are tricky because they are subjective. Moreover, the notion of ‘fake news’ is extremely vague and open to arbitrary interpretation, and legislation criminalising or otherwise censoring ‘fake news’ will likely give the authorities extensive powers to determine what information the public may access. Such laws could be used as a dragnet to outlaw reporting on government misconduct, the expression of critical opinions, and the speech of the political opposition, bloggers, human rights defenders, and journalists.

Facebook post

Another problematic feature of the law is the provision criminalising the publication of material ‘likely to discredit the reputation of a person’ which attracts a fine of Sh5 million and a sentence of 10 years. Basically, the law has reintroduced criminal defamation law, which was determined to be unconstitutional by Justice John Mativo in February 2017, following a case that was prompted by a Facebook post. In the case, the judge was categorical that the prospect of arrest, being arraigned, applying for bail, hiring a lawyer and potential jail term and the fine was a disproportionate and unjustifiable limitation to freedom of expression.

He was being guided by Article 24 of the Constitution and Article 19 of the International Convention on Civil and Political Rights which sets out very strict parameters in which government or any other party can limit fundamental freedoms such as freedom of expression. As per the articles, any limitation must be clearly and concisely worded; be necessary and proportionate in an open and democratic society; and, pursue a legitimate aim. Criminal defamation fails on the third limb of proportionality because there are less restrictive means of protecting other peoples’ reputations through civil proceedings that do not involve an arrest, prosecution, and custodial sentences. An aggrieved party who alleges defamation simply needs to file a civil case in the court and if he proves his case, he is compensated for damages.

Currently, every person who is online is a publisher. This means that narratives are no longer curated by media houses, journalists and states. As such, the only means of fighting disinformation online is through media literacy that will allow Kenyans to critically examine stories and content and identify what is likely true or false.

Mr Kiprono is a constitutional and human rights lawyer.demaslaw@gmail.com