Bloggers Association of Kenya (BAKE) has been dealt a blow after the High Court dismissed a case challenging the constitutionality of the Computer Misuse and Cybercrime Act.
In the ruling delivered on Thursday, Justice James Makau stated that the petition was unwarranted and had sections that had been suspended by the court.
The group had moved to court in May 2018 challenging the constitutionality of the law.
The Act proposes the creation of the National Computer and Cybercrimes Coordination Committee whose mandate includes advising and coordinating national security organs on matters relating to computer and cybercrimes; coordinating the collection and analysis of cyber-threats and responses to cyber incidents that threaten Kenya’s cyber space.
The committee mandate also includes, receiving and acting on reports related to computer and cybercrimes; advising the national government on critical and emerging technology such as mobile money and blockchain technology; establishing codes and frameworks to manage critical national information infrastructure; and for the training of security personnel on the prevention, detection and mitigation of computer and cybercrimes.
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BAKE argued that that 26 sections of the Computer Misuse and Cybercrimes Act, 2018, were unconstitutional and constituted an infringement on fundamental freedoms.
According to BAKE, the sections threatened the freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing.
Following the petition, Justice Chacha Mwita suspended 22 sections that touched on child pornography and its penalties, publishing of false information, fraudulent use of electronic data, interference with computer systems and data, among others.
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On June 25, 2018, the Attorney General filed an application seeking to have the suspension lifted pending the hearing and determination of the case.
“The Attorney General argued that the suspension ordered by Justice Chacha Mwita was erroneous as it was heard and determined exparte, ” BAKE said in an update on its blog.
On October 1, Justice Wilfrida Okwany dismissed the IG’s petition.
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In her ruling, Justice Okwany stated that the injury complained of has to be balanced with the legal requirement that all laws pass the constitutional validity test.
BAKE was also among other groups that opposed the inclusion of some clauses that the government ‘sneaked’ into Finance Act 2019. The bill was last year signed into law by President Uhuru Kenyatta.
BAKE moved to court and requested the amendment of the sections touching on access to computerised systems i.e tax systems.
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