Judgement on the Computer Misuse and Cybercrimes Law to be Passed Next Year

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The judgment on the constitutionality of the Computer Misuse and Cybercrimes Act 2018 will be heard on 30th January 2020 as reported by the Bloggers Association of Kenya (BAKE).

The case was stated before Judge James A. Makau in the Milimani High Courts yesterday in the afternoon.

The judgment on this case will be a culmination of a long process that started in May 2018 when BAKE filed the case against the state after it was made into law by the President.



Timeline

The Computer Misuse and Cybercrimes Act of 2018 was signed into law by the President back in May of 2018. This law was meant to address crimes that happen in online and electronic platforms.

However, it was found out that some of the provisions in the law were unconstitutional and the Bloggers Association of Kenya sued the state over the law.

They filed a case against the Act in May 2018 in the High Court where they challenged the constitutionality of the 26 sections of the Act. The sections were:

  1. Section 5 – Composition of the National Computer and Cybercrimes Coordination Committee
  2. Section 16- Unauthorised interference
  3. Section 17- Unauthorized interception
  4. Section 22 – False publications
  5. Section 23 – Publication of false information
  6. Section 24- Child pornography
  7. Section 27 – Cyber harassment
  8. Section 28 – Cybersquatting
  9. Section 29 – Identity theft and impersonation
  10. Section 31 – Interception of electronic messages or money transfers
  11. Section 32 – Willful misdirection of electronic messages
  12. Section 33 – Cyber terrorism
  13. Section 34 – Inducement to deliver electronic message
  14. Section 35- Intentionally withholding message delivered erroneously
  15. Section 36 – Unlawful destruction of electronic messages
  16. Section 37- Wrongful distribution of obscene or intimate images.
  17. Section 38- Fraudulent use of electronic data
  18. Section 39- Issuance of false e-instructions
  19. Section 40- Reporting of cyber threat
  20. Section 41- Employee responsibility to relinquish access codes
  21. Section 48 – Search and seizure of stored computer data
  22. Section 49 – Record of and access to seized data
  23. Section 50 – Production order
  24. Section 51- Expedited preservation and partial disclosure of traffic data
  25. Section 52 – Real-time collection of traffic data
  26. Section 53- Interception of content data

On 29th May 2018, Judge Chacha Mwita suspended 26 sections of the Act where he granted the request to give conservatory orders to stop the specific sections from coming into effect, just a day before the Act was to come into effect.

On 25th June 2018, the Attorney General filed a petition that seeked to have the suspension of the 26 sections lifted pending the hearing and determination of the case.  The AG argued that the suspension done by Judge Chacha Mwita was apparently erroneous and done “ex parte”. However, the presiding judge for this case, Justice Wilfrida Okwany extended the suspension orders to 1st October 2018.


On 1st October 2018, Justice Wilfrida Okwany threw out the application filed by the Attorney General where the state seeked to have the suspension of the 26 sections of the Ac lifted.

From October, the suspension orders were extended in succession starting from 5th November 2018, 3rd December 2018, 6th March 2019, 30th April 2019 and now 23rd October 2019. Judge Makau will now announce his final judgement on 30th January 2020.

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