Kenya's Computer Misuse and Cybercrimes Act of 2018 Has Been Declared Constitutional On 20 February
Updated: Feb 28, 2020
On 20 February 2020, Judge James Makau of the Kenyan High Court declared the Computer Misuse and Cybercrimes Act of 2018(“CMCA”), constitutional. This decision arose out of a legal petition by the Bloggers Association of Kenya (BAKE) that sought to suspend 26 controversial clauses of the law pending constitutional review - specifically, Sections: 5; 16; 17; 22; 23; 24; 27; 28; 29; 31; 32; 33; 34; 35; 36; 37; 38; 39; 40; 41; 48; 49; 50; 51; 52 & 53.
Various voices have aired concerns that the CMCA prejudices social media users, bloggers, journalists and free speech advocates in Kenya. Two significant provisions that have been declared constitutional are Section 22(1) of the CMCA and Section 23.
A person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.
The legal implications of Section 22(1) are far reaching and may open the floodgates for prosecution in cases where false data is negligently shared or distributed (in practice, whether or not there is intention will be determined by a Kenyan Court).
A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence and shall on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years, or to both.
Section 23 is drafted broadly, and ambiguously, and as it stands, has the potential to limit freedom of expression in Kenya. Quoting BAKE Chairperson Kennedy Kachwanya, “[BAKE is] concerned that the State and other actors may use this law to target and intimidate bloggers and other online users, and so it is our intention to immediately appeal this decision”.
What BAKE’s decision means from a Civil Procedure standpoint is that BAKE will appeal the High Court’s decision to the Court of Appeal of Kenya. In the event that BAKE is unsuccessful at the Court of Appeal of Kenya, it may, if the merits of its case allow, apply to the Supreme Court of Kenya to review the decision of the Court of Appeal, which may either be affirmed, varied, or overturned.
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