The Computer Misuse and Cybercrimes Act, 2018 was signed into law by the President Uhuru Kenyatta on 16th May 2018. The law came into effect on 30th June 2018.
The law’s purpose was to address crimes that take place through electronic and online platforms. The law addressed offences such as Cyber espionage, Computer forgery, computer fraud, false publication, child pornography, cybersquatting, phishing, identity theft, cyber terrorism among others.
When we studied the new law, we were concerned that several provisions of the new law were unconstitutional and constituted an infringement on fundamental freedoms. In our opinion, 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.
We then made the decision to go to court to challenge the new law. We filed a case against Computer Misuse and Cybercrimes Act, 2018 in May 2018 and here is an update of what has transpired since then.
29th May 2018
We filed a case in the High Court (petition 206 of 2018) challenging the constitutionality of 26 sections of the Cybercrimes Act. In our case, we sued Attorney General, Speaker of the National Assembly, Inspector General of Police, and the Director of Public Prosecutions (DPP). Article 19 and the Kenya Union of Journalists (KUJ) were enjoined in the case. Mercy Mutemi represented BAKE in the case while Article 19 were represented by Demas Kiprono.
The sections we challenged were:
25th June 2018
The Attorney General argued that the suspension ordered by Justice Chacha Mwita was erroneous as it was heard and determined exparte. They added that the suspension sought by BAKE was based on the fact that BAKE fears the online users will be arrested and charged using unconstitutional Act but up to now none has been arrested. They added that each case can be addressed in case by case basis.
We however disagreed with the AG that his loyalty should be to The Constitution, seeking to protect promote and uphold Constitutional values rather than to implement the Act of Parliament. Through our lawyer, Mercy Mutemi, we filed a notice of preliminary objection and an affidavit sworn by our General Manager, Jane Muthoni, stated that lifting the suspension on the 26 sections would spell doom to the 51 million internet users in Kenya.
Justice Wilfrida Okwany extended the suspension orders to 1st October 2018 when she planned to make a ruling on the application by the Attorney General.
3rd July 2018
1st October 2018
The parties in the case appeared before Justice Wilfrida Okwany on 1st October 2018.
Justice Wilfrida Okwany threw out the application filed by the Attorney General (AG) seeking to have the suspension of the 26 sections of the Computer Misuse and Cybercrimes Act 2018 lifted pending the hearing and determination of the case.
Judge Okwany directed that the matter be placed before Justice Chacha Mwita for directions and continuity of the case. The suspension orders for the 26 sections were then extended to 5th November 2018.
5th November 2018
We appeared before Justice Wilfrida Okwany when our case was erroneously placed in her docket. She had directed in October that the case be placed before Justice Chacha Mwita.
Justice Okwany directed that the case be mentioned before Justice Mwita on 3rd December 2018 for directions and continuity of the case. She extended the suspension orders to 3rd December 2018.
3rd December 2018
We appeared before Chacha Mwita on 3rd December 2018.
LSK had filed their own petition against the Cybercrimes Act and the judge directed that their join our petition as an interested party. They were further directed to file a response to our petition.
The case was postponed to 6th March 2019 and the suspension orders were extended to that date.
6th March 2019
We appeared before Justice Makau on 6th March 2019 where we asked for an adjournment. The case was then adjourned to 30th April 2019 and the suspension orders were extended to that date.
30th April 2019
We appeared before Justice J. A Makau on 30th April 2019. One of the parties in the case, the Director of Public Prosecutions (DPP) was not ready to proceed with the case. The case was postponed to 17th July 2019. Justice Makau extended the suspension orders to 17th July 2019.
17th July 2019
On 17th July 2019, our case heard by Justice Korir as Justice Makau was on leave. The lawyers representing the AG and the DPP were not present and so Justice Korir postponed the hearing of the case to 23rd October 2019. He also directed that that the case be placed Justice Makau’s docket on the said date.
He extended the suspension orders for the 26 sections to 23rd October 2019.