The Kenyan Court on Wednesday heard final submissions in the case referred to as the Cybercrime Law (Constitutional Petition No. 206 of 2018) whether some of its sections are consistent with the Constitution.
In the case, the Bloggers Association of Kenya (BAKE) sued the Attorney-General, the Speaker of the National Assembly, the Inspector-General of Police and the Director of Public Prosecution over the Computer Misuse and Cyber Crimes Act 2018.
In this case, the Kenya Union of Journalists and Article 19 are listed as interested parties.
The hearing was heard before High Court Judge Justice James Makau
Ms. Mercy Mutemi, Advocate representing BAKE asked the court to determine whether some of the provisions within the disputed law, in this case Sections 3, 5, 16, 17,22 ,23, 24, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 and 53 of the Act deny, infringe and threaten freedom of expression, media, and persons besides the right to privacy, property and a fair hearing in a manner that is not justified under Article 24 of the Constitution.
“Freedom of expression is the backbone of democracy. It allows people to think and say what they want. The moment you stop, you threaten democracy. It is an enabler of many other rights,” Mutemi told the court.
The prayers of the petitioner are that all these sections be declared unconstitutional and that for those sections that seek to return sections that have already been declared unconstitutional through back door, the second respondent to be condemned to pay the cost.
The Respondents in the matter argued that the petitioners were merely ‘fighting for their livelihoods’. They argued that the Petitioner ‘envisages a utopia’ where they are allowed to say anything against others and make a living out of “That utopia does not exist,” Advocate Paul Nyamodi argued. Adding that the Petitioners had “Funadamentaly misread the Constitution.”
He asked the judge to make his judgment based on doctrine od separation of powers; the state duty of care to its citizens; the presumption of constitutionality and The obligation of the state in keeping its citizenry safe besides Kenya having a progressive Constitution.
The Petitioner’s response to the Respondents’ submission told the court that they had failed in fulfilling their duty under Article 24(3) of the Constitution to prove that all conditions under Article 24 had been met.
“The Respondents have failed to draw a direct line by showing the nature of the threat and limiting that right and having how to curbing that threat,” said Mutemi noting that “Instead, the Respondent focused (Nyamodi) on his contempt for the Petitioners by calling them utopian by holding on an authoritarian regime and ideals.”
Mutemi said the Respondents had resorted to using national security terminologies as a justification of limiting rights forgetting that the courts have stated before that the words have meaning.
She argued that all the Respondents in the matter under Article 21 of the constitution are obliged to uphold the law.
She said in as much as Uganda, Tanzania has its own laws regarding cybercrime, “The test (for the disputed law) is under Article 24. Is the law compliant within our constitution? It is not a competition among neighbors. Rights can be limited but in a certain way,” said Mutemi.
Following the conclusion of the submissions, Judge Makau said he will announce his judgment on 30th January 2020.
Currently, 26 sections of the Act remain suspended. They include 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.