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18-05-2018 |  By:  |  Comments

By Mugambi Laibuta

I finally got hold of the Computer Misuse and Cybercrimes Act 2018. Here is my view about some of the provisions which in my view are unwarranted limitations to free speech:

  1. The Objects of the Act: As you will note in later provisions, the Act negates the very purpose it seeks to address.
  2. Fake News: the provision on fake news is quite vague. World over, fake news is problematic. It is not clear how this provision will get enforced.
  3. In my opinion, Article 33 of the Constitution is sufficient enough to deal with the limitations of freedom of expression.
  4. Publication of false news carries a penalty of 5M shillings and 2 years in prison. Note that a lot of information comes from people online. What this will do is stop free speech online. It will have a chilling effect. Information sharing will be highly limited.
  5. Looking at the crimes on unauthorized interception, unauthorized access, unauthorized interferernce, illegal access, etc.… here Whistleblowers will see fire. All that one has to argue is that information obtained relating to looting for example was illegally obtained.
  6. Publication of false information: who will determine whether some information has caused panic? This may be stretched to limit satire, parody, ridicule and criticism. In my view, this will limited political speech to a large extent.
  7. Cyber Bullying provisions: In my opinion, these are fairly well drafted though it is not clear how to determine that one has been affected adversely by cyberbullying. This might be problematic in implementation.
  8. Wrongful distribution of obscene or intimate images: in my opinion, this is an extremely weak provision. What it does is just outlaw sharing of pornographic images. What about the videos? What about revenge porn?
  9. The provision on revenge porn should indicate that it is images one comes across in confidence and shares without authorization. As crafted, even sharing an image from a random website is a crime.
  10. There is a brilliant provision on child pornography. We needed that like yesterday!
  11. The Act contains very high fines and sentences. When limiting free speech, of course there is the issue of reparation. However, limitations and punishment should not be so severe that they have the effect of stopping people from expressing themselves.
  12. There is NO reason at all to have custodial sentences for free speech infractions that are not stated in Article 33(2) of the Constitution.
  13. Whether mainstream or citizen journalists, their work will be limited, limiting free press because all one will do is avoid suing someone for defamation and instead have them arrested for false publication. A big travesty in justice.

These are excerpts from tweets by Laibuta from his Twitter Account @Olez. Reproduced with permission.


  Computer Misuse, Cybercrime, Bullying, Cyber Bullying, Kenya, Law, Fake News, Freedom Of Expression, Whistleblowers, Free Speech,


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