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Kenya’s new law removes legal lacuna that existed in cyber space

Sunday May 20 2018


An image depicting cybercrime. Africa needs to secure democracy and prosperity from cybercrimes. FILE PHOTO 

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We live in a digital age, when “the world is experiencing the most severe democratic setback since the rise of fascism in the 1930s” (Foreign Affairs, May/June 2018: 20).

The power of the internet is a paradox. The spread of information and communication technology in the 21st century has opened space for the promotion of democracy.

But the surge of cybercrimes has posed the greatest transnational security threat to democracy, already under attack from xenophobic populist movements in rich countries and is sliding back to authoritarianism in many developing countries. Africa needs to secure democracy and prosperity from cybercrimes. Kenya’s new Computer Misuse and Cybercrimes Act (2018), which President Uhuru Kenyatta signed into law on May 16, 2018, is a positive step to this end.

Cyber criminals are exacting a heavy toll on the world economy.  Across the world, about Sh60 trillion ($600 million) is lost to cyber criminals annually.  In the wake of “WannaCry”, the world’s largest cyber-attack in April 2017 that hit more than 300,000 computers in 150 countries, organisations and large companies lost millions to the attack. It is estimated that losses from cybercrime could be as high as $2.1 trillion by 2019.


In Africa, cybercrime is riding on the phenomenal expansion of internet penetration. About 25.1 per cent of Africans are now online. In Kenya, in the July-September 2017 quarter, internet penetration stood at 89.7 per cent, attributed to affordable smartphones and data bundles.


Cyber attacks cost Africa at least $2 billion by the end of 2016. Kenya lost nearly Ksh2 billion ($23 million) to cybercrime in 2013. And in 2016 the country recorded the highest losses in East Africa (at $171 million) followed by Tanzania ($85 million) and Ugandan ($35 million).

Africa is erecting an architecture to counter cybercrimes. In 2014, African Union (AU) member states adopted the “African Union Convention on Cyber Security and Personal Data Protection” to fill gaps in cyber security laws, which exposed the continent to the growing threat of cybercrime.

In May 2017, the African Union Commission (AUC) unveiled its Internet infrastructure security guidelines in Nairobi. Kenya’s new Computer Misuse and Cybercrimes Act (2018) reflects the new genre of laws collectively contributing to Africa’s emerging legal infrastructure to counter cybercrimes.


Undoubtedly, Kenya is a global leader in innovations in ICTs, with world-class money transfer platforms, government services such as eCitizen, transmission of examination results, tax returns processes and even surveillance capabilities.

But the cyber space had become a den of internet criminals posing a security threat to its young democracy and a barrier to progress and prosperity.

Besides conning people out of their money, bullying, extorting and sending pornography, cyber criminals spread false or fake information on social media platforms.

Kenya’s cybercrimes law removes the legal lacuna that existed in cyber space, rightly theorised as a new “ungoverned space”.  The law is expected to plug all the holes that cyber-criminals and terrorists used to fleece or terrorise individuals and communities in Africa.

Africa’s emerging cybercrimes frameworks target a wide range of crimes in the internet. One is the financial frauds crimes. Second, they target cyber-terrorism where a terrorist operating in the cyber space intimidates or coerces a government or an organisation to advance a distinct political or social agenda by launching a computer-based attack against computers, networks, or the information stored on them.


Third, they target cyber-extortion by malicious hackers who attack websites, e-mail servers or computer systems and demand money in return for promising to stop the attacks and to offer “protection”.

Fourth are crimes that primarily target computer networks or devices such as computer viruses, denial-of-service attacks and malware (malicious code).

Fifth are crimes that use computer networks or devices to advance other ends including fraud and identity theft, information warfare, phishing scams, spam. Also in this category is propagation of illegal, obscene or offensive content, including harassment and threats, unsolicited sending of bulk emails for commercial purposes (spam), which is unlawful in some jurisdictions.

Six is obscene or offensive content, including internet pornography and child pornography, which is illegal in most jurisdictions in the world.

Seven is on-line harassment which directs obscenities and derogatory comments at specific individuals focusing for example on gender, ethnic, racial, religion, nationality, sexual orientation often in chat rooms, through newsgroups, and by sending hate e-mail.


Finally is drug trafficking where dark markets are used to buy and sell recreational drugs online. The dark web site “Silk Road” was a major online marketplace for drugs before it was shut down by law enforcement.

Africa is also a target of cyber-warfare associated with events of geo-strategic significance, especially cyber terrorism as part of proxy wars.

Kenya’s new law gives a heavy stick to the law-enforcement authorities to secure the cyberspace. 

Clause 12 of the law targets the publishing of a false or fictitious information electronically, imposing a Sh5 million ($50,000) fine or a two-year jail term, or both.

Those sending out pornography through the various electronic means will attract a maximum fine of Sh300,000 or 30 years in prison or both if proved. The law provides a tool for timely and effective detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes.


It also allows the search and seizure of stored computer data, record of and access to seized data, production order for data, expedited preservation, partial disclosure, real-time collection and interception of data.

Hitherto, most offences related to online harassment have previously been charged through the ancient Penal Code and the NCIC Act.

The law has established the National Computer and Cybercrimes Coordination Committee. It also facilitates international co-operation in dealing with computer and cybercrime matters.


But Africa’s emerging anti-cybercrimes architecture is stoking the embers of human rights fundamentalism in sections of civil society and the media. Opposition to the new laws is riding on the age old liberal critique of anti-crime laws as potentially abridging civil liberties.

In Kenya, they are fretting “tough times ahead,” arguing that ‘false information’ will give the authorities a free opportunity to gag the media.

Inversely, Kenya’s new law will rid the cyber space of criminals, enabling citizens to realise their full potential of citizenship in a democracy through a secure internet.

Prof Kagwanja is a former Government Adviser and Chief Executive of the Africa Policy Institute.