Kenya: Court of Appeal’s ruling strikes further blow to free expression and privacy

Kenya: Court of Appeal’s ruling strikes further blow to free expression and privacy -

Employees at Daproim, a data processing company which is partnered with Samasource.

ARTICLE 19 is concerned by the judiciary’s refusal to suspend 26 provisions* in the Computer Misuse and Cybercrimes Act , 2018, pending the hearing and determination of the substantive appeal filed by the Law Society of Kenya in March 2020.

“ARTICLE 19 Eastern Africa continues to document instances where free expression online is stifled using these broad provisions, in relation to the ongoing coronavirus pandemic. This happens to Internet users generally, and has specifically affected bloggers, citizen journalists, activists, whistleblowers and politicians,” said Mugambi Kiai, Regional Director of ARTICLE 19 Eastern Africa.

“These provisions are stifling the rights to freedom of expression, access to information, and privacy in Kenya. We call on the Kenyan judiciary to recall its mandate as an independent arbiter in matters where human rights violations have been alleged by an applicant, and further call on the Kenyan government to repeal or reform the Computer Misuse and Cybercrimes Act in its entirety.”

On 7 August 2020, a three judge bench dismissed a notice of motion filed by the LSK seeking to suspend the enforcement of 26 provisions in the Computer Misuse and Cybercrimes Act (CMCA), 2018. These provisions were upheld as constitutional by the High Court in Petition No. 206 of 2018 on 20 February 2020.

Ahead of the main appeal, the Law Society of Kenya (LSK) sought conservatory orders to suspend the enforcement of the provisions on false publications and the publication of false information (sections 22 and 23) by the Director of Public Prosecutions and the Inspector General of Police.

If people publish information on the coronavirus online, they risk contravening the CMCA, 2018 and the Ministry of Health’s COVID-19 guidelines and possible criminal prosecution. Notably, sections 23 and 23 of the CMCA, 2018 both carry punitive criminal sanctions of two years and ten years, respectively.

Crucially, the Court of Appeal noted that the main appeal would need to balance the rights to free expression and access to information against the need to ‘disseminate correct information’ and combat cybercrimes in the Kenyan jurisdiction.

ARTICLE 19 EA underlines that the Court of Appeal has a well-established duty when applying and interpreting a provision of the Bill of Rights, to adopt the interpretation that most favours the enforcement of a right or fundamental freedom and promote the spirit, purport and objects of the Bill of Rights (Article 20, Constitution of Kenya, 2010).

The Court of Appeal’s established jurisprudence maintains that it is the ‘duty of every judge, magistrate, member of a tribunal or other body invested with judicial functions to deliberately and unrelentingly pursue, encourage, entrench, protect, jealously guard, educate and propagate ‘Project Freedom’ and aim to advance openness, democracy, and ensure that liberty rings loud and true in every place and sphere of Kenyan’s socio-political life. The Constitution demands that everything the Bill of Rights stands for in its text, its purport, its spirit, philosophy and intendment as a charter of liberty must be given full effect in a bold and unflinching manner. Judges must speak the language of rights and fundamental freedoms and do so with neither apology nor embarrassment. To fail to do so or to do otherwise would be to violate the express precepts of the Constitution.’

Based on the foregoing, the Court’s own jurisprudence mandates the Court to ensure that any alleged threat to, and/or violation of a right or fundamental freedom is heard, and extensively balanced per the three-part test (legality, proportionality and necessity) as required by the International Covenant on Civil and Political Rights and the Constitution of Kenya, 2010.

The LSK filed a subsequent application for review and setting aside of this ruling on Tuesday 11 August, 2020 on grounds that the Court of Appeal departed from established judicial precedent ‘on the court’s power to grant conservatory orders and on the meaning of “nugatory”… which risks engendering a perception… (which) can dim public confidence in the court’s competence and fairness when exercising judicial authority.’

*Note: The 26 provisions include section 5, 16 – 17, 22 – 24, 27 – 29, 31 -41, 48 – 53.


For more information, please contact Mugambi Kiai, Regional Director at [email protected]