Bloggers have won the first round in a legal battle with the government over the Computer Misuse and Cyber Crime Act after the High Court ruled that the disputed law remains suspended.
Lady Justice Wilfrida Okwany dismissed the government’s request to have the law enforced, saying the temporary order issued earlier by her colleague, Justice Enoch Chacha Mwita, was justified. “I find that the injury complained of has to be balanced with the legal requirement that all laws pass the constitutional validity test,” said Justice Okwany.
She added: “In addition to the above consideration, the court is also bound to consider where the public interest lies and, in this case, I find that nothing can be of great public interest than the court playing its constitutional mandate of ensuring that the individual rights and freedoms are protected and that laws, especially those creating offences, conform to the law.”
On May 29, Justice Mwita temporarily suspended implementation of 22 sections of the cybercrime law which allegedly limits fundamental freedoms, including those of information and expression.
The judge issued the order in a case in which the Bloggers Association of Kenya (BAKE) sued the Attorney-General, the Speaker of the National Assembly, the Inspector-General of Police and the Director of Public Prosecution.
The Kenya Union of Journalists and Article 19 are listed as interested parties in the case which challenges sections of the Computer Misuse and Cyber Crimes Act 2018.
But the AG, through the Solicitor General, asked the court to set aside that order while claiming that it would be difficult to charge suspects with certain offences created by the new Act or fulfil some international obligations.
Justice Okwany dismissed this request and ruled that it would be improper for her to heed the government’s plea.
She faulted the AG for tactfully delaying the case instead of allowing the constitutionality of sections of the disputed law to be determined once and for all.
“A perusal of the order issued by Justice Mwita shows that he satisfied himself that there was a prema facie case warranting the specific orders that he issued,” said Justice Okwany.
But Bake argues that this is already taken care of under the Defamation Act and that criminal libel or defamation was declared unconstitutional by the High Court in February 2017.