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Ruling on cybercrimes law welcome

Good news for freedom of expression, media and information broke last week. The High Court suspended 26 sections of the Computer Abuse and Cybercrimes Act 2018 which was to come to effect on May 30.

The Bloggers Association Kenya deserves commendation for challenging the new law in court. The Observer stated the Act, signed by President Uhuru Kenyatta on May 16, is a bad law.

High Court Judge Chacha Mwita on Tuesday, May 29, 2018, granted BAKE’s request to give conservatory orders to stop the specific sections from coming into effect. The bloggers said the sections would have dire consequences on freedom of expression, freedom of the media and freedom of information. (Read BAKE’s petition here)

“I am satisfied that the issues raised affect the Constitution and fundamental rights and freedoms. I therefore grant the conservatory orders sought”, the Judge ruled. The case will resume on 18th July 2018.

The suspended sections are: 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 and 53.

The freedom of expression group Article 19 Eastern Africa and Kenya Union of Journalists are enjoined in the suit.

James Wamathai, the director of partnerships at BAKE, said the decision is timely, appropriate and important in protecting freedoms. “In the past several years, there have been attempts by the government to clamp down on the freedom of expression online. This Act is a testament of these efforts, especially after other sections were declared unconstitutional by the courts.”

Wamathai said the Act sought to reintroduce the purged sections of the law while imposing even more restrictions on the freedom of expression.

Lead counsel for Article 19 Demas Kiprono said, “Laws criminalising false news are very problematic because they are so broad and overly vague in their wording, meaning they are subject to abuse by the authorities. Our courts have severally found that criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.”

KUJ secretary general Eric Oduor said sections of the new law are retrogressive and reintroduce criminal libel. “This decision is welcome as criminal libel was expunged from our laws by the courts. The law will also interfere with self-regulation, which is prerequisite of press freedom,” he said.

In BAKE’s State of the Internet 2016 report, the association reported that 60 bloggers were arrested for exercising their freedom of expression online. During the same year, journalists and bloggers were silenced, intimidated, harassed and killed for their persistent exercise of their freedom of expression, freedom of the media and right of access to information. Social Media platforms had become effective platforms for online activism, online democracy and the fight for social justice as noted in the 2017 State of the Internet report.

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