Cybercrime law is faulty, let’s rectify it
The public uproar over the Computer Misuse and Cybercrime Act signed this week by President Uhuru Kenyatta is justified. The law violates fundamental rights such as freedoms of expression and access to information and personal liberties. It is a threat to the media, developers of digital applications and content, bloggers, as well as ordinary citizens.
Even more worrying is that most of the criminal offences targeted are not clearly defined, which portends ill for citizens because such provisions are susceptible to arbitrary interpretations and can be misapplied with grave consequences.
What essentially is a law meant to curb cybercrime has turned out to be an omnibus legislation that limits and criminalises rights established in the Constitution, duplicates existing laws and dispenses harsh penalties contrary to the principle of natural justice.
The objective of the law is to prevent cybercrime — a major threat to national and international peace and security. Cybercrime has several permutations and affects national and global security, economic and financial systems, industrial and technological institutions and personal safety. Nations are grappling every day with ways and means of curbing its effects. To that extent, there is clear merit for its enactment.
However, we are concerned that the intention and implication of the law are poles apart.
First, it imposes very harsh penalties — fines and custodial sentences — for every crime it serves to curb. For example, Article 27, which addresses cyber harassment (loosely defined as communication or act that causes apprehension or fear), provides for a Sh10 million fine or 20-year jail term. Clearly, this is inordinately cruel and defies the rule of proportionality.
Secondly, it extends beyond its scope, ominously as it criminalises libel and curtails media freedom. It stipulates that a publisher of false information — defamation — is liable to a Sh5 million fine or 10 years imprisonment. Yet the courts had declared this unconstitutional.
It violates critical constitutional provisions, is punitive and retrogressive. It must be challenged in court.