The hearing of submissions of the Computer Misuse and Cybercrimes Case was held in the High Court on 23rd October 2019. The case had been in court since 29th May 2019.
In our petition, we had cited that 26 sections of the law infringed on fundamental freedoms and limits various rights as guaranteed by the constitution. The Sections included 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 & 53.
Our contention was that 26 sections of the law threaten 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. The 26 sections were suspended and they remain so to date.
The case was heard before Hon Justice James Makau where we had sued the Attorney-General (AG), the Speaker of the National Assembly, the Inspector-General of Police (IG) and the Director of Public Prosecution(DPP), over the Computer Misuse and Cyber Crimes Act 2018. Kenya Union of Journalists(KUJ), Law Society of Kenya (LSK) and Article 19 are listed as interested parties.
In her submissions, BAKE lawyer Ms. Mercy Mutemi asked the court to determine whether the 26 sections of the provisions in the disputed law were unconstitutional and denied, infringed and threatened freedom of expression, media, and persons besides the right to privacy, property and a fair hearing, as enshrined in the constitution of Kenya.
She argued that some of the provisions had led to the arrest of bloggers and content creators in the online space and in these instances the government has presumed it owned the truth and any other opinion was false. She further argued that the purpose of coming up with a section criminalizing fake news was unconstitutional, and an effect to muzzle opinions and quiet discordance to the government, as the legislators themselves were the biggest beneficiaries of fake news.
“Freedom of expression is the backbone of democracy and the enabler of all other rights, begging the question, why the government would want to regulate fake news,” she argued.
BAKE asked the court to declare the 26 sections unconstitutional. They also noted that the law contained sections that had been declared unconstitutional and had, through this law, been reintroduced.
It has been a long journey, starting with an injunction we were granted in May 2018 by Judge Chacha Mwita suspending the implementation of 26 sections of the law. The judge agreed with BAKE that if the law came to effect there was imminent danger of bloggers and other online users. The orders have been extended for the better part of last year and this year and are set to remain so until the ruling date.
Following the conclusion of the hearing, Judge Makau announced that he will deliver his ruling on the Cybercrimes Case on 30th January 2020.