Abstract
Kenya’s Computer Misuse and Cybercrimes Act makes it an offence, in Section 27, for a person to communicate with another a message that they know or ought to know would cause the recipient fear; is indecent or offensive in nature; or would detrimentally affect the recipient. This offence carries a penalty of either a 20 million shilling fine or a 10-year term of imprisonment or—discretionarily—both. While the offence is termed ‘cyber-harassment’, its wording appears to exclude a number of offences that would count as cyber-harassment such as cyber-stalking, doxing or impersonation. In fact, its wording is vague and overbroad, using undefined terms such as ‘detrimentally affect’ which require subjective interpretation. Cyber-harassment laws constitute a limitation on the freedom of expression and as such, ought to conform to the limitations of human rights test as provided in Article 24 of the Constitution. Where the aim sought is legitimate in a democratic society and other conditions such as legality are met, this limitation is valid. This paper reviews Kenya’s law that was recently upheld by the High Court in Bloggers Association of Kenya (BAKE) v Attorney General & Three others; Article 19 East Africa & another and finds that it fails to meet the limitations test prescribed under Article 24 of the Constitution. It argues that Section 27 of the Computer Misuse and Cybercrimes Act is therefore overbroad and has the potential to be used as a tool for the unconstitutional suppression of legitimate criticism.
Highlights
In 2018, Kenya enacted the Computer Misuse and Cybercrimes Act
Using the examples of Nigeria and Uganda, both of which have worded cyber-harassment laws, constitutional provisions on the freedom of expression, and limitation clauses, this paper finds, in part four, that this risk is manifest in relation to political speech
THE HIGH COURT ON SECTION 27 OF THE CMCA. This part argues that Justice Makau, in his ruling on the Bloggers Association of Kenya (BAKE) Petition, erred in his finding on the constitutionality of the limits imposed by Section 27 of the CMCA
Summary
In 2018, Kenya enacted the Computer Misuse and Cybercrimes Act (the CMCA). Shortly after its enactment, its constitutionality was challenged at the High Court in Bloggers Association of Kenya (BAKE) v. Of the countries that have cyber-specific laws, cyber-harassment features distinctly as an offence in Botswana, Kenya, Nigeria and Uganda From these examples, cyber-harassment provisions in Nigeria and Uganda are worded to Section 27 of the CMCA. This overbreadth has the potential to endanger political speech that is often vital to democratic participation. Using the examples of Nigeria and Uganda, both of which have worded cyber-harassment laws, constitutional provisions on the freedom of expression, and limitation clauses, this paper finds, in part four, that this risk is manifest in relation to political speech. The paper concludes with some considerations Kenya ought to make when dealing with online harassment
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callMore From: Journal of Intellectual Property and Information Technology Law (JIPIT)
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
