Cybercrime law changes too harsh, lobbies say

Hacking. The proposed amendments to the Computer and Cyberspace Bill, 2017 have been well-received. FILE PHOTO

What you need to know:

  • Article 19 wants the drafters of the bill to address its inconsistencies with human rights standards.

Civil society groups have welcomed the proposed amendments to the Computer and Cyberspace Bill, 2017, but they are warning that the bill contains several broadly defined offences with harsh sentences that could gag online freedom of expression.

The groups’ analysis of the bill is based on Kenya’s obligations under international standards on freedom of expression and related human rights, particularly as they apply to digital media and the domestic guarantees to freedom of expression in the Constitution.

The bill, sponsored by Majority Leader Aden Duale, establishes two main categories of offences: Nine offences relating to the mishandling of computer systems or data, and three relating to content.

It also establishes enhanced penalties for certain offences, liability for aiding and abetting the commission of offences and corporate liability for offences.
In its analysis, Article 19 wants the drafters of the bill to address its inconsistencies with human rights standards before it is adopted by Parliament, arguing that enacting it in its existing format threatens online freedom of expression.

The organisation says in its report that the bill introduces an unusually high number of computer-related offences.

In comparison, the Council of Europe Cybercrime Convention contains only five such offences, and the UK Computer Misuse Act 1990 contains only four such offences.

“To our knowledge, neither State parties to the Convention nor the UK has raised concern that these offences are insufficient to deal with cybercrime,” Article 19 says in its analysis on the bill.

It also points out that the Bill contains separate offences for unauthorised access and interception, and separate offences for computer forgery or fraud.

“The substantial overlap between these offences creates concern that individuals will be charged under separate offences for the same crime, enhancing the risk of excessive criminal liability,” it argues in its report to the Committee on Communication, Information and Innovation of the National Assembly, which is dealing with the bill.

It adds that offences criminalising the exchange of particular types of content, including false publications and communications that “detrimentally affect a person” are likely to violate Kenya’s obligations to respect and freedom of expression.

“These offences are excessively broad and provide the authorities (with) largely unfettered discretion to prosecute individuals for expression and communication that is perfectly legitimate and lawful,” it states.

The group further argues that the potential impact and chilling effect of the offences in the proposed changes on minorities, civil society, academics and political opposition is particularly concerning.