Kenyan journalists and bloggers have scored a legal victory in their fight against a new cyber law that they say erodes freedom of speech and endangers millions of Kenyans who express themselves online.
Justice Chacha Mwita, a high court judge, on Tuesday suspended 26 sections of the Computer Misuse and Cybercrimes Act, which President Uhuru Kenyatta signed into law earlier this month.
Kenyatta said the law would protect Kenyans and ensure the security and safety of the country’s vast communications network.
But critics argued that it violated Kenya’s Constitution and infringed on freedom of expression, along with the rights to privacy and property.
Petition
In its petition to the High Court of Kenya on Tuesday, the Bloggers Association of Kenya (BAKE), an alliance of digital content creators chaired by Kennedy Kachwanya, said that the act would “deny, violate, infringe and threaten various rights and fundamental freedoms in the Bill of Rights in a manner that is not justified under Article 24.”
Article 24 states that freedoms cannot be limited unless doing so is “reasonable and justifiable in an open and democratic society.”
BAKE argued that much of the act was “vague” and “overbroad,” with key terms such as “publish” lacking definitions.
Article 19 Eastern Africa and the Kenya Union of Journalists were listed as interested parties on the petition.
Erick Odur, the union’s secretary general, tweeted that “Section 12 of the Act takes away media freedom as required by Article 34 of the Constitution and seeks to reintroduce criminal libel by imposing heavy fines” when Kenyatta signed the act into law.
Expanded offenses
The act, signed into law May 16, lists 33 offenses, including 15 that were added after the bill’s introduction to the National Assembly last June. Most of the additions are among the suspended sections.
Phishing, cyberterrorism, identity theft and cybersquatting, or appropriating another’s name, were among the offenses listed in the expanded law.
Most of the offenses carry penalties that include millions of shillings in fines, multiple years in prison or both.
“I am satisfied that the issues raised affect the Constitution and fundamental rights and freedoms. I, therefore, grant the conservatory orders sought,” the bloggers association quoted Mwita as saying.
Accountability
Supporters of the law believe it is needed to contain the spread of misinformation on the internet.
Bitange Ndemo was Kenya’s minister of information and communication from 2005 to 2013. He said the spread of misinformation showed that media in Kenya needed more accountability.
“It’s very dangerous because there is no verification mechanism. You can easily confuse people with what you call fake media or fake news,” Ndemo said.
He said Kenyan media “hasn’t woken up to” the necessity of verifying facts. “That is the downside of developing countries when it comes to fake news.”
The suspension covers more than half of the criminal offenses listed in the law, but the matter is far from resolved legally. With some portions of the law now in effect, the case will resume July 18.
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