Bloggers Association of Kenya Appeals High Court Judgment  on Cybercrimes Law

Through the Finance Act, 2020, Parliament amended the Income Tax Act by introducing a new Section 12D providing for the introduction of Minimum Tax at the rate of 1 per cent of the gross turnover effective 1 January 2021.

The Bloggers Association of Kenya (BAKE) appealed judgment made by the High Court against the Computer Misuse and Cybercrimes Act 2018.

“We have…been able to file our case remotely after the Judiciary instituted new filing rules in response to the COVID-19 crisis. Our Court of Appeal application was not certified urgent, but will be heard with all parties present on the issue of urgency,” said BAKE, a community organization that represents a group of Kenyan online content creators and that seeks to empower online content creation and improve the quality of content created on the web.

The petition challenging the Act was dismissed by High Court Judge Mr. Justice James A. Makau on 20th February 2020. 

According to the judge,  the law was valid in its entirety and that the 26 suspended sections of the Cybercrimes Law that BAKE had contested were constitutional, and therefore threw out the whole case.

Similarly, the Kenya Media Sector Working Group (KMSWG) in their petition to the Building Bridges Taskforce proposes that:

 “In order to protect freedom of expression online, the Computer misuse and cybercrimes Act be amended. Particularly, amend section 5 to include sector players in the established commission, sections 22 and 23 be amended to eliminate the window for abuse of the section by the authorities to harass journalists.”

They also recommend that “Any restrictions to Page 7 of 8 freedom of expression be limited to the prohibited speech outlined under Article 33(2) of the Constitution and section 41 of the Constitution be amended to avoid interference by the state in the sphere of private contracts.”

“It is important to BAKE that the country has laws that respect the freedom of the media, freedom of expression and that is in line with our great constitution. We will do all we can to ensure that our members and the media fraternity have a safe space to express their views freely,” Mr. Kennedy Kachwanya, BAKE Chairman,  said when they filed a notice of appeal on 21st February 2020.

The Computer Misuse and Cybercrimes Act No. 5 of 2018 (the Act) was assented to on 16 May 2018 and commenced on 30 May 2018. 

The Act aims to protect the confidentiality, integrity, and availability of computer systems, programs, and data as well as facilitate the prevention, detection, investigation, prosecution, and punishment of cybercrimes.

In March, Robert Alai was charged for allegedly publishing false information on the coronavirus (Covid-19) pandemic. The Interior Ministry said the move was in contravention of the Act.