In September 2016, ARTICLE 19 reviewed the draft Computer and Cybercrimes Bill, 2016 (Draft Cyber-crimes Bill), currently being discussed in Kenya, for its compliance with international freedom of expression standards. This is the second review of this piece of legislation as in July 2014, we analysed the first draft of this legislation (Cybercrime and Computer related Crimes Bill).
Our analysis shows that the Draft Cybercrimes Bill contains several important additions that are apparently modelled after relevant international standards. ARTICLE 19 notices and looks upon this positively. However, we also note that the Draft Bill also contains several broadly defined offences with harsh sentences that could dramatically chill freedom of expression online in Kenya. Further, many of the offences unnecessarily overlap with one another.
We recommend including more precise intent and harm requirements for existing offences, namely by requiring “dishonest” intent and “serious” harm to result for most sanctions. We suggest in multiple cases a ‘public interest’ defence. The defence entails providing an opportunity for an accused to establish that there was no harm or risk of harm to a legitimate interest in engaging in the proscribed activity, and that the public benefit in the activity outweighed any harm.
Finally, content-based offences such as the provisions criminalising cyber-stalking and cyber-bullying fall well below international standards. We recommend entirely omitting several offences that are so broadly defined as to expose them to abuse for less legitimate ends.