State opposes LSK case against arrest of bloggers

The case has been certified as urgent by the court.

In Summary
  • Bloggers Robert Alai and Cyprian Nyakundi were arrested and charged separately for posting Covid-19 related news on their platforms.
  • The court is expected to rule whether it will suspend sections of the Cybercrime Act on criminalisation of fake news.
Inspector General of Police Hillary Mutyambai
OPPOSED: Inspector General of Police Hillary Mutyambai

The state has challenged a case by the LSK seeking to stop the arrest of bloggers for posting news related to the Covid-19 pandemic in social media.

The Law Society of Kenya moved to court after the arrest and arraignment of bloggers Robert Alai and Cyprian Nyakundi who were separately charged for posting alleged fake news on the coronavirus.

However, the state through the National Police Service says freedom of expression is not an absolute right as has been argued by LSK.


“The right to freedom of expression contains both positive and negative connotation and the negative restrains the government from unnecessary intruding into private sphere of an individual,” reads court documents.

They argue that the positive aspect places an obligation on them to protect its citizens from misleading information whose effect would be to cause panic among members of the public thus affecting the ability of the government to exercise its duty of care over its citizens.

In an affidavit IG Hillary Mutyambai says in this age of Covid-19, fake news will spread faster than the coronavirus itself.

"Unfortunately, in view of the nature of the internet and the speed with which information is disseminated, the fake news could spread faster than the virus,” he argues.

Mutyambai says the public interest is the need to protect the wider public from dangers posed by the spread of fake news during the Covid-19 pandemic which outweighs the grant of orders sought by LSK which only serve to protect private interests of certain individuals.

“It is the responsibility of the state to ensure that only verifiable and accurate information on the pandemic is conveyed to the public through proper and official government channels,” he adds.

The police boss says that cybercriminals are exploiting interest in the global epidemic to spread fake news and malicious information relating to the outbreak of the virus. The information is alarming, unverified and misleading.


He further claims that fake news causes panic and tension among citizens resulting in loss of life.

In the case, LSK has challenged the decision by the state to arrest and charge the bloggers for publicising information on Covid-19.

“The arrest, arraignment and prosecution for Covid-19 related publication under the statute is likely to have a chilling effect on the public. Bloggers, activists, journalists and whistleblowers will be discouraged from publishing information on suspected violation of Ministry of Health Covid-19 guidelines,” the lawyers say.

Through lawyer Dudley Ochiel, LSK says sections 22 and 23 of the Cybercrime Act should be suspended as they limit freedom of expression by criminalising false publication.

They have filed a notice of appeal against the judgment of the High Court on February 22 that upheld criminalisation of false publication.

"It would be disastrous if due to the chilling effects of threatened arrest and convictions under the Act independent journalists and activists are discouraged from publishing information online on violation of Ministry of Health regulations," Ochiel says.

He says on March 23, blogger Robert Alai was charged with publication of fake information for a question he posed on twitter: 'Is the Kenyan Government hiding Covid-19 related deaths at the port of Mombasa?'

Blogger Cyprian Nyakundi was charged with the offence of publication of false information at the Kibera law court on April 7 for a post he made asking why the KRA commissioner general jetted back from the US and started having meetings before the 14 days quarantine."

Edited by Henry Makori

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