Offensive post could land you in jail or bankruptcy

Bloggers and social media users risk a fine of Sh20 million or a prison term of 10 years, or both, for harassing a person through the internet by making posts that are indecent or grossly offensive.

You are also liable to the above penalties for posting information that may cause another person’s apprehension or fear of violence, damage or loss of his/her property.

The Inspector General of Police and Director of Public Prosecutions have received court orders to enforce the contentious Computer Misuse and Cybercrimes Act, 2018, meaning that your social media posts are likely to land you in jail or  bankruptcy.

It will also cost an offender Sh5 million or a two years imprisonment for publishing false and misleading information, fake news.

The State got a boost in the enforcement of the law that limits and regulates the freedom of expression, after three judges of Appeal rebuffed a second attempt to suspend its implementation.

The judges said they were not persuaded that enforcement of some 26 contentious sections of the Act will render a pending appeal filed by the Law Society of Kenya (LSK) nugatory.

Public interest

The Act came into force in April this year after High Court judge James Makau dismissed a petition challenging its constitutionality.

The LSK then filed an appeal and an application to have the execution suspended pending hearing and determination of the appeal.  They said it was a matter of public interest.

But Justices Wanjiru Karanja, Daniel Musinga and Sankale ole Kantai rejected the request, saying a party needs to conjunctively establish both the arguability and nugatory aspects of the appeal before considering the public interest point.

The Bench, however, recommended that the appeal be fast-tracked.

They noted that the appeal raises serious issues that call for determination — such as whether criminalisation of the sections of the Act compromises a citizen’s right to information and right of expression as guaranteed by the Constitution.

In the appeal, LSK is challenging Justice Makau’s ruling that the Act is valid and does not violate, infringe or threaten fundamental rights and freedoms and is justified under Article 24 of the Constitution.

The judge said the 26 disputed sections of the Act do not violate, infringe and threaten fundamental rights and freedoms, as argued by the petitioner.

The petitioner, Bloggers Association of Kenya, had asserted that forbidding the consumption and production of pornography as set out under Section 24(1) (c) of the Act does limit the right to freedom of expression.

Criminal defamation

The group contended that Section 23 of the Act is similar to Section 29 of the Kenya Information and Communication Act which was declared unconstitutional in 2016. That section also reintroduces criminal defamation, formerly based on Section 194 of the Penal Code, which was also declared unconstitutional in 2017.

But Justice Makau dismissed the petition after finding that the freedom of expression does not extend its immunity to speech that amounts to harassment of another person.

“The essence of Section 28 of the Act is to assist the State to effectively uphold proprietary rights under the Constitution. Further giving the framework for the proper enforcement of intellectual property rights and more specifically in the cyber space,” he said.

He ruled that Parliament in its wisdom, elected to prescribe that criminal liability can be pursued regarding violations of intellectual property and recommended a penalty for the same.

“The petitioner has failed to demonstrate how any fundamental freedom is violated in punishing what are essentially universally condemned acts for cyber-squatting,” said Justice Makau in part of his ruling.

Some of the offences prescribed by the disputed law include unauthorised interference to a computer system, programme or data, intercepting of electronic messages or money transfer and fraudulent use of electronic data. Others are intentionally publishing false or fictitious misleading data, publishing information in print, broadcast which causes panic, chaos or violence and the one that relates to child pornography.

Criminal prosecutions

When urging the court that the appeal will be rendered nugatory should the enforcement of the law be allowed, the LSK expressed fears that criminal prosecutions would follow and the specific persons who were to be arraigned in court would possibly be sent to prison.

“The arrest, arraignment and prosecution for Covid-19 related publications under the statute is likely to have a chilling effect. Bloggers, activists, journalists and whistle-blowers will be discouraged from publishing information on suspected violation of the Ministry of Health Covid-19 guidelines – with grave public health consequences,” said LSK chief executive Mercy Wambua.

She observed that the appeal would become moot and academic if any members of the public are arrested, prosecuted and convicted under the statute, in the pendency of the case.

But the judges said the argument is based on presumptuous events, as it targets events that are prospective.

“It (the argument) deals with prospective anticipatory circumstances rather than current or probable events. There is no telling or predicting whether Covid-19 will still be with us by the time the appeal is heard and determined,” said the judges.

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