LSK President Nelson Havi
Blogger Cyprian Nyakundi successfully challenged section 85D of the Kenya Information Communication Act (KICA) in July 2019.
The law which penalised sharing obscene materials/vulgar materials in electronic form about a person was declared unconstitutional by Lady Justice Wilfrida Okwany.
The High Court judge while delivering her ruling in 2019, for a case the blogger filed in April 2018, said that that law is vague and broad, making it hard for accused persons to defend themselves. She further said the section was against Article 33 on freedom of expression and Article 25 (C) on the right to fair trial.
“The section is unconstitutional in so far as it suppresses freedom of expression and denies and accused right to fair trial through ambiguity. It is vague. The law creating a criminal offence must be clear. The section is retrogressive to an open, modern and democratic society,” she ruled.
Section 84D of KICA Act reads; Any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both. Blogger Nyakundi challenged that law, as he was facing several charges after posting obscene information against Kirinyaga Governor Anne Waiguru in 2018. He was also facing similar charges before a Nairobi court, after posting remarks on his Twitter account, against Interior CS Fred Matiang’i, Nairobi Governor Mike Sonko, and former Kenya Power MD Ken Tarus.
Fast forward to late 2019, and there were reports that the law was making its way through the Computer Misuse and Cyber Crimes Act, some sections which had also been declared unconstitutional in 2016 by another Lady Justice Ngugi Mumb i.
The Computer Misuse and Cyber Crime Act became law again in early 2020 in February after Judge James Makau revoked the suspension of some 26 sections which were suspended in May 2018. To be clear, Justice Makau had lifted suspension on sections that were suspended by Justice George Odunga.
The Act was then used to harass Bloggers Robert Alai and Cyprian Nyakundi over posts they made about coronavirus in March.
This is when it struck blogger Nyakundi that he needed to move to court again. Blogger Nyakundi on his Facebook posts promised to go back to court to have the law overturned so that Kenyans can enjoy the freedom of speech and 'to save upcoming bloggers. Law Society of Kenya (LSK) The LSK has moved to court to appeal Justice Makau's orders on Computer Misuse and Cybercrime Act.
In the civil application 102 of 2020, LSK told the court they are concerned that section 22 and 23 of the Act particularly limits freedom of speech and expression of the applicant and the citizenry of Kenya at large by the use of broad and vaguely worded offences that the government can wield to arrest, investigate and imprison its critics and dissenting voices on Covid-19.
The civil application 102 of 2020 dated 20th April 2020 seeks to conservatory orders be issued suspending the enforcement of Sections 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 & 53 of the Computer Misuse and Cybercrime Act, 2018. In the alternative, the Applicant seeks conservatory orders suspending the enforcement of Section 22 (False publication) and Section 23 (Publication of false information) of the Computer Misuse and Cybercrime Act, 2018 (‘hereinafter the Act’) pending the hearing and determination do the intended Appeal. This Act ladies and gentlemen, especially YOUTHS seeks to even criminalise Cybersquatting . Where can we, after being oppressed and denied a chance to work due to deliberate bad policies and collapsing of the economy are we supposed to get money?
The arrest and prosecution under such draconian law must be resisted by Kenyans. The media had celebrated when the Computer Misuse and Cyber Crime law was brought back saying that it will now 'teach bloggers a lesson', not knowing that they too will be crushed under the boots of the dictator.
When blogger Nyakundi won against section 84D of KICA, the judge had rightfully observed that leaders ought to take up criticism and act on issues raised by the citizens .
Though the respondents have supported the resintatement of the draconian law, LSK pushed further in its submissions, stating:
“ We humbly submit that the right to freedom of expression contains both positive and negative connotations and the negative connotation restrains the government from unnecessary intruding into the private sphere of an individual”, LSK said.
The case will be heared tommorow, June 3. Court Documents 2nd & 5th Respondents Reply Civil Application No. 102 of 2020 2nd & 5th Submissions on Application for Conservatory Orders