The High Court has dismissed a petition filed by bloggers challenging 26 sections of the Computer Misuse and Cybercrimes Act, 2018.
The Bloggers Association of Kenya (BAKE) moved to court arguing that the 26 sections were unconstitutional. They said the sections threatened freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing.
But High Court Judge James Makau in his judgment declared the law valid in its entirety. He ruled that the 26 sections that bloggers had contested were constitutional, thereby dismissing the case
“The petition by the bloggers is declared unwarranted and the Act does not violate any fundamental rights,” he said.
BAKE plans to appeal the decision.
The cybercrimes law was signed into law by President Uhuru Kenyatta on May 16, 2018. The same month, BAKE filed a case challenging the constitutionality of 26 sections of the Act.
In the case, the bloggers sued the Attorney General, the Speaker of the National Assembly, the Inspector General of Police, and the Director of Public Prosecutions.
Article 19 and the Kenya Union of Journalists were enjoined in the case as interested parties.
After the ruling, BAKE's lawyer Mercy Mutemi said, "If there ever was a time to uphold freedom of expression and advance the protection of digital rights, it is now. We will be appealing the decision of the High Court in the Court of Appeal. This is the fight of our generation."
"The digital space is our space, and we must fight brave and hard to protect this space for ourselves and for those who come after us. This is how democracy is in this age.”
BAKE's chairperson Kennedy Kachwanya said the ruling threatens the freedoms that Kenyans have fought for and which are enshrined in the Constitution.
"We are concerned that the state and other actors may use this law to target and intimidate bloggers and other online users and so it is our intention to immediately appeal this decision," he said.
"Justice Makau has declared that the cybercrimes law is valid including the parts that sneaked back Criminal Defamation provisions that were declared unconstitutional by Justice Mativo.”
Demas Kiprono, lawyer for Article 19 and Campaign Manager, Safety and Dignity at Amnesty International Kenya, said though they respect the court's decision, they believe that the court misdirected itself regarding certain fundamental issues touching on freedom of expression and civic space.
"We hope that the Court of Appeal will appreciate the primacy of digital rights in an indefinably increasing digital age.”
