Kenya's Cybercrimes Law: A Threat to Freedom of Expression

Strategic Insights -

The High Court's decision in February 2017 to quash criminal defamation under Section 194 of the Penal Code was hailed as a significant step towards protecting online freedom of expression in Kenya. However, the subsequent enactment of the Computer Misuse and Cybercrimes Act in 2018 introduced over 30 offences related to the use of computer systems and digital devices, including the crime of publishing false information. Critics argued that this law could be used to suppress free speech. The Act's broad provisions raised concerns among bloggers, journalists, and civil society groups, who warned that it risks expanding State surveillance. Despite a lawsuit filed by the Bloggers Association of Kenya, the High Court upheld the constitutionality of the Act in 2020.

Key Takeaways:

  • The High Court's decision in 2017 to quash criminal defamation under Section 194 of the Penal Code protected online freedom of expression in Kenya.
  • The Computer Misuse and Cybercrimes Act, enacted in 2018, introduced over 30 offences related to the use of computer systems and digital devices.
  • The Act's broad provisions raise concerns among bloggers, journalists, and civil society groups, who warn that it risks expanding State surveillance and suppressing free speech.
  • The High Court upheld the constitutionality of the Act in 2020, dismissing the bloggers association's petition.
  • Critics argue that the law can be used to reintroduce criminal defamation and limit imparting of information and ideas through social media platforms.
  • Individuals have been slapped with fines and in some cases, jail terms for breaching the Act.
  • The Act's scope extends beyond individuals to corporate and public institutions.
  • The law has been used to seize devices from individuals, including a senior doctor at Kenyatta University Teaching and Referral Hospital.
  • Corporate institutions, such as hospitals, have also been targeted under the Act.

Cases:

  • In 2022, a teacher and blogger, Albert Ojwang, was arrested and died in custody while facing charges under the Computer Misuse and Cybercrimes Act.
  • In 2022, a software developer, Rose Njeri, was targeted by detectives for allegedly creating a programme that automatically generated and sent mass emails to the official address of the National Assembly Finance Committee.
  • In 2022, a lawyer, Kelvin Mwaura, was charged with cyber harassment over emails sent to a former client.
  • In 2022, a student, Fidel Mbalah, was fined Sh1.8 million for unauthorised access to the Moi Teaching and Referral Hospital's website.

Statistics:

  • Over 30 offences related to the use of computer systems and digital devices were introduced under the Computer Misuse and Cybercrimes Act.
  • The Act's scope extends beyond individuals to corporate and public institutions.
  • In 2022, a teacher and blogger, Albert Ojwang, was arrested and died in custody while facing charges under the Computer Misuse and Cybercrimes Act.
  • In 2022, a software developer, Rose Njeri, was targeted by detectives for allegedly creating a programme that automatically generated and sent mass emails to the official address of the National Assembly Finance Committee.
  • In 2022, a lawyer, Kelvin Mwaura, was charged with cyber harassment over emails sent to a former client.
  • In 2022, a student, Fidel Mbalah, was fined Sh1.8 million for unauthorised access to the Moi Teaching and Referral Hospital's website.

Sources:

  • A Police warrant to seize devices from Dr William Ndavi, a senior doctor at Kenyatta University Teaching and Referral Hospital, was set aside by Justice Kanyi Kimondo in February 2022.
  • In April 2022, Justice Reuben Nyakundi reduced the punishment of Fidel Mbalah, a student who was convicted of cyber harassment, to 17 months' probation.
  • In 2022, a student, Mishak Kimtai, was fined Sh1.8 million for unauthorised access to the Moi Teaching and Referral Hospital's website.
  • In 2022, a lawyer, Kelvin Mwaura, was charged with cyber harassment over emails sent to a former client.
  • In 2022, a software developer, Rose Njeri, was targeted by detectives for allegedly creating a programme that automatically generated and sent mass emails to the official address of the National Assembly Finance Committee.
  • In 2023, a lawyer, Kelvin Mwaura, began judicial review proceedings in the High Court against the Director of Public Prosecutions and the Directorate of Criminal Investigations challenging the decision to charge him.