The Court of Appeal on Tuesday September 15 ruled that bloggers and social media users risk 10 years jail or Ksh20 million fine if found guilty of harassing a person through the internet by publishing indecent or grossly offensive posts.
Judges Wanjiru Karanja, Daniel Musinga and Sankale ole Kantai ruled that offenders are also liable to the penalties for posting information that may cause apprehension or fear of violence in another person.
The Inspector General of Police and Director of Public Prosecutions received court orders to enforce the contentious Computer Misuse and Cybercrimes Act, 2018, meaning that one’s social media posts are likely to land him/her in jail or make one bankrupt.
It will also cost an offender Ksh5 million or two years in jail for publishing fake news.
The State received a boost in the enforcement of the law that limits and regulates the freedom of expression, after the three judges rebuffed a second attempt to suspend its implementation.
Justices Karanja, Musinga and Kantai revealed they were not persuaded that enforcement of some 26 contentious Sections of the Act would render a pending appeal filed by the Law Society of Kenya (LSK) futile.
The Act came into force in April this year after High Court judge James Makau dismissed a petition challenging its constitutionality.
LSK then filed an application to have the execution suspended pending hearing and determination of the appeal. They stated it as a matter of public interest.
Makau added that the 26 disputed sections of the Act do not violate, infringe and threaten fundamental rights and freedoms, as argued by the petitioner.
However, the three-judge Appellate Bench rejected the request but recommended that the appeal be fast-tracked.
They noted that the appeal raises serious issues that call for determination like whether criminalisation of Sections of the Act, compromises a citizen’s right to information and right of expression as guaranteed by the Constitution.
Bloggers Association of Kenya who had petitioned the matter asserted that forbidding the consumption and production of pornography as set out under Section 24(1) (c) of the Act limits the right to freedom of expression.
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.
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.
It further gives the framework for the proper enforcement of intellectual property rights and more specifically in the cyber space,” he said.
Some of the offences prescribed by the disputed law are unauthorised interference to a computer system, intercepting of electronic messages or money transfer and fraudulent use of electronic data.
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