On Wednesday 16th May 2018, President Uhuru Kenyatta signed the Computer Misuse and Cybercrimes Bill 2018 into law.
Cyber-crime which is also referred to as computer crime can be defined as criminal activity that involves a computer, a networked device or a network. The computer may be used to commit the crime or it may be the target.
Under the new bill, a person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.
Article 19 founded in 1987 is a British human rights organization with a specific mandate and focus on the defense and promotion of freedom of expression and freedom of information worldwide. According to their April 2018 review of the then draft of the Bill , “this sweeping criminalization of ‘false publications’ would effectively arrogate to authorities the role of determining ‘truth’ in public discourse severely curtailing independent journalism, civic engagement and other activities essential to a democratic society”. The analysis went on to say, “The prohibition on publication of ‘fictitious data’ could also be broadly interpreted to penalize writers, bloggers, artists and anyone publishing satirical or comedic material online”.
The Bill also provides that a police officer may, in special circumstances enter, without a warrant any premises in or on which the police officer suspects an offence has been or is likely to be committed and take possession of such computer system.
The bill, published by National Assembly Majority Leader Aden Duale seeks to remove the legal lacuna or gaps in the law where no regulations applied that existed. Cyber espionage, child pornography, cyber terrorism, cyber harassment and other cyber-crimes are dealt with and criminalized in the new law.
The new law is a double edged sword. On one hand, it seeks to make the online space safe for Kenyans as it prescribes stiff penalties for cyber criminals. On the other hand, some of its provisions can be interpreted in a way that leads to the limiting of freedom of expression for journalists, bloggers and others.