A petitioner, Geoffrey Maina has challenged the Computer Misuse and Cybercrimes Act, 2018 stating that it contravenes the constitution. On 16th May 2018, the President of the Republic of Kenya assented the setting stage for a new regime including offences made through computer devices and the internet.
Mr. Maina, an advocate of the High Court of Kenya states that some sections purport to impose limitations on rights and fundamental freedoms contrary to Article 24 of the constitution of Kenya. He adds that the Act was passed without the necessary public participation contrary to the requirements of the Constitution.
Article 24 states A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
The petitioner is set against the Attorney General, The National Assembly, The Director of Public Prosecution and the National Police Service. The Act is under the ministry of Interiors and National security. The petition is in the matter of Article 1, 2, 3, 10, 19, 20, 21, 22, 23, 24, 27, 31, 32, 33, 34, 35, 40, 47, 50, 56, 93, 94, 116, 118, 165, 258 and 259 of the Kenyan Constitution 2010.
The petition contends that some sections of the Act are unconstitutional and therefore null and void. Terms such as computer misuse and cybercrimes are not defined hence leaving it open to several interpretations. The petitioner recognises that some sections of the Act violate people’s right to property and may lead to confiscation or forfeiture of one’s assets hence violating the right to own property under article 40 of the constitution which protects the right to property.
The penalties when found to have committed a crime under section 14 to 46 are too harsh which include fines of up to fifty million shillings or imprisonment of up twenty-five years. This denies a person the right to access information under Article 35 of the Kenyan Constitution. Anyone who would want to say the truth would fear they might be sentenced for speaking out. Service providers have not been left behind as they could be punished when they fail to cooperate with the government even where reasonable grounds for refusal exist.
The petition also notes the Act targets bloggers contrary to Article 27 of the constitution which provides that every person is equal before the law and has the right to equal protection and equal benefits of the law. Other violations of the Act include the right to privacy, the right to freedom of expression, the right to freedom of opinion and the right to freedom of the media.
According to the petition, the National Assembly failed to uphold its role under Article 94 which includes protecting the constitution and promoting the democratic governance of the republic.
The Act has also failed to align with International Standards and requirements contrary to Article 2(5) and (6) of the Constitution. The Act violates the universal declaration of human rights, International Covenant on economics, Social and Cultural Rights, The International Covenant on Civil and political rights, African Convention on Human and People’s rights and he convention against Torture.
The petitioner emphasises that some of the sections of the Act are inconsistent with the constitution rendering the Act unconstitutional thus void. As in a previous Case with Okiya Omtatah Okoiti versus Communication Authority of Kenya and 8 others (2018), the court recognised that Privacy is a fundamental human right enshrined in numerous international human rights instruments. A person’s right to privacy entails that such a person should have control over his or her personal information free from unwanted intrusions.