(L-R) BAKE General Manager Jane Muthoni, Lawyer Demas Kiprono from Article 19 & BAKE Lawyer Mercy Mutemi
BlogInternet Freedoms

Update on the BAKE Cybercrimes Case

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.

23rd October 2019

On 23rd October 2019, our case was heard before justice James Makau. The hearing was for both parties to submit their final submissions of the Computer Misuse and Cybercrimes Act case. Following the conclusion of the submissions, Judge Makau said he will announce his judgment on 30th January 2020.

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 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.

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.

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.

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.

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.

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.

3rd July 2018 

On 3rd July there are a mention before Justice Wilfrida Okwany to confirm that the parties to the case had made submissions to the application that the AG had made.  The suspension remained in effect until 1st October 2018.

25th June 2018

The Attorney General filed a petition seeking to have the suspension of the 26 sections lifted pending the hearing and determination of the case. This time, the presiding judge was Justice Wilfrida Okwany.

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.

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:

  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
After hearing our petition, High Court Judge Chacha Mwita issued orders suspending suspended the 26 sections that we were challenging until our case was heard.  The judge agreed with BAKE that if the law came to effect there was imminent danger of bloggers and other online users. The ruling was timely because the law was supposed to come into effect on 30th May 2018.  He set the next court date as 18th July 2018.

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