The Law Society of Kenya (LSK) has joined the efforts to declare sections of the Computer Misuse and Cybercrimes Act, 2018. The lawyers’ body is suing the National Assembly, Attorney General, Director of Public Prosecution and the Inspector General of Police asserting that the sections will infringe on media freedoms and freedom of expression. Through lawyer Waikwa Wanyoike, LSK says the operation of a questionable legislation raises an imminent danger to the Bill of Rights through arrests and prosecutions. The petition further adds that there can be no use of a favorable determination of the petition since the torture has already taken place and freedom lost beyond recall.
In the petition, Waikwa who will be assisted by Dudley Ochiel, also an Advocate of the High Court, argues that under Article 24 and 33(1) of the Constitution, any restriction of the freedom of expression must cumulatively meet the following conditions: it must be provided for by law, it must address one of the four aims – hate speech, propaganda for war, advocacy of hatred and incitement to violence; and must be necessary to achieve the legitimate purpose.
According to LSK, the Act creates several offenses which constitute and threaten the right to freedom of expression under article 33, freedom of the media under article 34 and right to access to information under article 35. They, therefore, want 15 sections of the Computer Misuse and Cybercrimes Act 2018 declared unconstitutional and invalid.
The Petitioner maintains that in a Constitutional democracy like Kenya, any member of the public has a right to say or write whatever he likes about the Government or its measures, by way of criticism or comment, so long as his speech does not amount to propaganda for war, incitement to violence, hate speech, or advocacy of hatred under Article 33(2)(d).
The petitioner also notes that to the contrary, fake news provisions, section 22 and 23 of the Act are vague and overly-broad especially with regard to the meaning of “false” and “misleading. Beside vagueness, the provisions have a chilling effect on the public’s freedom of expression.
The petitioner contends that the right to seek or receive information or ideas under Article 35 is infringed as such chilling effect denies the public the benefit of many shades of grey in terms of various points of view that could be expressed about the tenure of public officers. The petition asserts that freedom of expression extends to the expression of views and opinions that offend, shock or disturb such as the kind prohibited by these sections.
Further, the public’s right to information under Article 35 is directly affected since the section does not refer to what the content of the message can be, but only to its effect. The section, therefore, ropes in all information deemed as false, misleading or fictitious notwithstanding its artistic, academic or scientific value.
In addition, they add that the public’s right to petition through online platforms under Article 37 is threatened as the legitimate object of such petition is often to advocate for a particular infringement of rights of the public or advocacy against misuse of public funds.
LSK is now the third petitioner seeking to have the cybercrimes law declared unconstitutional after the Bloggers Association of Kenya and Geoffrey Maina. The case is before the Constitutional and Human Rights Division of the High Court.