Bring Cybercrimes Act in conformity with constitution

On Wednesday, President Uhuru Kenyatta assented into law the Computer and Cybercrimes Act. This ended nearly four years of developing, drafting and enacting cybercrime legislation meant to tackle criminal enterprises that rely on cyberspace and computers. Among the areas targeted are hacking, credit card theft, cyber terrorism, phishing and identity theft. Others are content related crimes such as child pornography, cyber bullying or stalking, revenge porn, cyber terrorism and false news.

One of the hallmarks of the law is that it criminalises the publishing and distribution of false news. Specifically, the Act creates the offences of “publishing false, misleading or fictitious data or misinformation with intent that the data shall be considered or acted upon as authentic”; and “publishing information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of others”.

STIFF PENALTIES

The law also prescribes stiff penalties. For instance, if found guilty, a person may be fined Sh5 million and a jail term of 10 years for publishing false information that results in panic, chaos or violence.

Legally speaking, laws criminalising false or fake news are problematic because they are subjective. What is true or false depends on a person’s point of view, vantage point, beliefs, convictions or knowledge. For instance, when Galileo Galilei asserted that the earth was not the centre of the universe and that it, in fact, revolved around the sun, he was arrested, tried and convicted and sentenced for deviating from the “truth of the day”. Today, he is revered for ushering the age of reason.

Moreover, the wordings such as “misleading or fictitious data or misinformation” are not only subjective but are also broad and overly vague, meaning they are subject to abuse by the authorities. In fact, our courts have many times found that criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.

FREE EXPRESSION

The law imposes a legal duty of “truth” to any publisher. As such, it creates a powerful instrument to control journalistic activities and free expression online.

Allowing public officials to decide what counts as truth is tantamount to accepting that the forces in power have a right to silence views they don’t agree with, or beliefs they don’t hold. Under such laws, journalists, bloggers, whistle-blowers or human rights defenders could be sent to prison on accusations of disseminating untrue statements about alleged wrongdoings by the government.

Article 24 of the Constitution and Article 19 (3) of the International Convention on Civil and Political Rights, which Kenya is party to, prescribe the three-part test regarding the legal requirements for laws limiting free expression offline and online.

Firstly, the law must be clear and concise; secondly, it must pursue a legitimate aim; and thirdly, the law must be necessary and proportionate in an open and democratic society. It is noteworthy that the laws on false news fail on the first and second tests in terms of clarity and proportionality and thus they are unconstitutional and unjustified.

FALSE NEWS

It is noteworthy that false news is not part of the forms of speech prohibited under Article 33(2) of the Constitution such as propaganda for war, incitement to violence, hate speech or advocacy of hatred. In fact, criminal charges and imprisonment for speech should be reserved for the most dangerous forms of insults or calls for harm of a person or a group based on tribe, race or religion.

Besides, a closer look at the law reveals that it is an attempt to reintroduce Criminal Defamation, which was declared unconstitutional by the High Court in February 2017 when Justice John Mativo found that criminalising speech in the quest for the protection of reputations of others is an unjustified and disproportionate limitation to freedom of expression under the constitution and Kenya’s international law obligations.

The court added that civil defamation was a less restrictive measure.

If the law is applied as it is, then it will have a chilling effect on freedom of expression online and press freedom which will affect our democracy and even the fight against corruption.

PROSECUTION

The prospect of arrest, prosecution, having to hire a lawyer and imprisonment will cause bloggers, journalists and other online influencers to shut up on issues of human rights abuses, consumer rights, government excesses and even environmental degradation.

Parliament and the government should review the Computer and Cybercrimes Act to bring it into conformity with the constitution.

Our media houses must provide high-quality journalism to build public trust and correct fake or false news and disinformation.

After all, our leading media houses still have the most visited websites in Kenya. Citizens should also follow a diversity of news sources and be cynical of what they read and watch.

The writer is Senior Legal Officer - ARTICLE 19 Eastern Africa; [email protected] Twitter: @kipdemas