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We presented the memorandum below regarding The Cyber Security and Protection Bill 20l6 to the Senate committee on Information and Technology that is chaired by Hon. Mutahi Kagwe.

The Senate committee had published an advertisement in newspapers announcing public participation for the bill on October 19th.

Memorandum by BAKE regarding The Cyber Security and Protection Bill, 20l6

The Bloggers Association of Kenya (BAKE) is a community organization that represents a group of Kenyan online content creators and that seeks to empower online content creation and improve the quality of content created on the web.

We are happy with the proposed The Cyber Security and Protection Bill, 20l6 because it has many progressive provisions that address cyber security threats in the country. However,  the Bill in its current form if enacted will fly in the face of the Constitution, provisions on freedom of expression and is likely to be challenged in court on these provisions that are not in line with the Constitution of Kenya, 2010.

BAKE is alive to various court decisions that have struck out provisions in law that infringe on the Constitution, especially those that limit freedom of expression, beyond the constitutional limits in Article 33(2).

Specifically, sections 27, 28 and 29 are regressive.

Section 27 and 28 on cyber bullying and wrongful distribution of intimate images set limits that are contrary Article 33 of the Constitution. These two provisions are alive to the realities that are taking place in our society today. Unfortunately, they cannot propose to cure something that the Constitution has not provided basis for.

Article 33 of the Constitution of Kenya enshrines freedom of expression and ensures that Kenyans have the right to seek, receive and impart information including freedom of artistic creativity. The constitution also provides that freedom of expression can only be limited pursuant to Article 33 (2) in cases of propaganda for war, incitement to violence, hate speech, advocacy for hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or hatred based on discrimination.

Sending information online to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm does not conform to Article 33 (2). In addition, publishing, sharing or downloading intimate image of another person also fail to appreciate Article 33 (2) of the Constitution of Kenya, 2010.

The wording in section 29 on Cyber squatting presupposes that a person who cyber squats knowingly did it. There is no open source system in Kenya where one can check names, business names, trademark, domain name or other word or phrase registered to establish whether they have their owners or not.

In hindsight, the burden of proof is shifted from the Director of Public Prosecutions to the accused. This flies in the face of Article 50 of the Constitution which enshrines the right to fair trial.

It would be prudent if section 9 on information sharing agreements is expanded. We propose that the shared information between public and private entities be made public after a period of time, for instance one year. This is progressive and in line with the spirit of the Access to Information Act, 2016. Where the information is national security related, the period could be longer, subject to national security protocols.

BAKE therefore calls on the Senate to rethink these provision, in order to guarantee the country has a robust cyber security law. Moreover, international best practice and constitutional provisions on freedom of expression must be adhered to during this process.