In May 2018, Bloggers Association of Kenya moved to court to challenge The Computer Misuse and Cybercrimes Act, 2018 that was signed into law by President Uhuru Kenyatta on 16th May 2018. The Act was established to counter computer fraud, false publication, cyber terrorism among others.
BAKE was particularly concerned about several provisions of the new law found to be unconstitutional and constituted an infringement on fundamental freedoms. 26 sections of the law threatened the freedom of opinion, freedom of expression, freedom of the media, freedom, and security of the person, right to privacy, right to property and the right to a fair hearing
Challenging constitutionality of the sections in a petition, High Court Judge Chacha Mwita issued orders suspending 26 sections of the Cybercrime Act. But in June, the Attorney General, a defendant in the case, filed a petition to have the suspension lifted. What followed was a series of hearings before the court that saw the case suspension orders extended to 23rd October 2019.
At Milimani Law Courts, Lawyer Mercy Mutemi, representing the petitioner before Judge James Makau started off the session by giving context to the computer misuse and cybercrimes law, which have led to the arrest of bloggers and in these instances, the government presumed it owns the truth and any other opinion is false.
“Freedom of expression is the backbone of democracy and the enabler of all other rights, begging the question, why the government would want to regulate fake news. The purpose of coming up with a section criminalizing fake news is unconstitutional, an effect to muzzle opinions and quiet discordance to the government, as the legislators themselves are the biggest beneficiaries of fake news,” she argued.
Some sections of the Act were argued to be unconstitutional for failing to describe the element of the offense and are not clear on what these offenses target to avoid criminal liability. The petitioner also reiterated that Standing orders 133(5) of the national assembly is unconstitutional insofar as it violates article 118 of the constitution, as there was no public participation.
But according to the AG and IG lawyer, article 118 of the constitution doesn’t make the legislations subject to the people. The people can not micromanage the sovereign ability to legislate under the guise of public participation.
The petitioner asked that these sections be declared unconstitutional and that for those sections that seek to return sections that have already been declared unconstitutional through back door to be condemned to pay the cost. Judgment for the case will be heard on 30th January 2019.