Cy­ber­crime law is faulty, let’s rec­tify it

Daily Nation (Kenya) - - OPINION -

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.

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