- The LSK was aggrieved by the decision of Justice Chacha Mwita who dismissed the petition that challenged sections of the law.
- The court ruled that the LSK had failed to demonstrate that the appeal would be rendered nugatory if the orders sought were not granted.
The Court of Appeal has dismissed an application seeking to suspend sections of the Cybercrimes Act that criminalise publication of fake news related to Covid-19.
The LSK had sought conservatory orders pending the hearing and determination of the appeal.
They wanted the court to suspend enforcement of section on false publication and publication of false information in the Computer Misuse and Cybercrimes Act, 2018.
The lawyers were aggrieved by the decision of Justice Chacha Mwita who dismissed a petition that challenged sections of the law, which, according to them, limited freedom of expression in violation of Articles 33 and 34 of the Constitution.
However, the court ruled that LSK had failed to demonstrate that the appeal would be rendered nugatory if the orders sought were not granted.
Judges Wanjiru Karanja, Sankale ole Kantai and Daniel Musinga dismissed the application, ruling that it was based on futuristic events and anticipatory circumstances rather than current or provable events.
The court noted that the application was prompted by the arrest of specific individuals who were said to have disseminated false information on Covid-19 deaths.
The court said the application raised serious issues that called for determination of the court.
But the judges ruled that there was no telling whether Covid-19 would still be with us by the time the appeal is heard and determined.
“We cannot anticipate whether an unknown blogger somewhere will decide to report on the Covid-19 protocols and what they will say. Even assuming that some unknown person will report on the Covid-19 protocols and they will be arrested, then there is due process and there are competent courts with jurisdiction to deal with such cases as and when they arise,” the court held.
In the application, LSK had argued that if those provisions were not outlawed, criminal prosecutions would follow and the persons who to be arraigned would possibly be sent to prison.
The LSK further argued that the arrest, arraignment and prosecution of Covid-19 related publication under the statute was likely to have a chilling effect.
“Bloggers, activists, journalists and whistleblowers will be discouraged from publishing information on suspected violation of the Ministry of Health Covid-19 guidelines with grave public health consequences,” the LSK claimed.
The LSK had also told court that the appeal itself would become moot and academic if any member of the public was arrested, prosecuted and convicted under the statute in the pendency of the appeal.
The state opposed the application arguing that it is a very important piece of legislation and the criminality of the acts complained of is in the exercise of the state’s duty of care to its citizens.
In his affidavit, IGP Hillary Mutyambai argued that increased access to the internet and exposure to online risks and insecurity associated with the cyberspace was a pressing concern not just in Kenya but the world over.
Edited by Henry Makori