Justice Wilfrida Okwany orders that 26 sections of the Cybercrimes law to remain suspended until October 1st
The suspension of 26 contentious sections of the Computer Misuse and Cybercrimes Act has been extended to 1st October 2018. In an application filed by the Attorney General seeking to have the sections lifted pending the hearing and determination of the case, Justice Wilfrida Okwany extended the orders to October when she will make a ruling on the application.
The Attorney General had argued that the suspension ordered by Justice Chacha Mwita was erroneous as it was heard and determined exparte.
Bloggers Association of Kenya (BAKE) through their lawyer, Mercy Mutemi had filed a notice of preliminary objection and an affidavit sworn by its General Manager, Jane Muthoni, that lifting the suspension on the 26 sessions would spell doom to the 51 million internet users in Kenya.
BAKE argued with the Attorney General that his loyalty should be to The Constitution, seeking to protect promote and uphold Constitutional values rather than to implement the Act of Parliament.
On their part, the Attorney General said 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.
But the association defended the move and ruling arguing that the bill was introduced by Majority leader and passed through the Attorney General’s office. They approved it and formed a working group to work on the bill. They are therefore complicit in protecting Kenyan rights, and hence do not deserve special treatment by the court.
Article 19 who are interested parties of the case through Demas Kiprono asserted that Section 5 the Act is trying to reintroduce the device management system that was found unconstitutional by the High Court in the case of Okiya Omtatah Vs the Communication Authority of Kenya.
BAKE further argued that the application by the state amounts to an appeal, not a review, hence the Judge should dismiss the application with costs for lack of jurisdiction to hear the matter.
On May 29th, BAKE applied and was granted orders suspending 26 sections of the Computer Misuse and Cybercrimes Act, 2018 arguing that the law infringes on fundamental freedoms and limits various rights as guaranteed by the constitution. BAKE convinced Justice Mwita that the 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 law came to effect on May 30th. In the petition, Kenya Union of Journalists (KUJ) is also listed as interested parties.