LSK TAKES COMPUTER MISUSE AND CYBERCRIME ACT TO APPELLATE COURT.

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BY SAM ALFAN.

Law Society of Kenya has moved to the Appellate Court to challenge the dismissal of a case filed by bloggers Association of Kenya (BAKE) over the constitutionality of the computer misuse and cybercrime Act.

High Court Judge James Makau dismissed the petition saying it was unwarranted and lifted a section suspended earlier by fellow Judge George Odunga.

But LSK has moved to the Court of Appeal, seeking to suspend several sections of the Computer Misuse and Cybercrime Act 2018, pending the determination of the appeal.

“In the alternative, a conservatory order be issued suspending enforcement of sections 22 (false publications) and 23 (publication of false information) of computer misuse and cybercrime Act, 2018 by Director of public prosecution and Inspector general pending hearing and determination of the intended appeal,” urged LSK.

The Court of Appeal certified the application urgent and directed the matter to be heard on June 3 by a bench of three judges.

The Society through lawyer Dudley Ochiel, argued that the high court erred in law by entirely disregarding his submissions on the unconstitutionality of the Act.

He further said by entirely omitting the LSK from the judgement despite its joinder on December 3, 2018 as an interested party in the case.

It is LSK argument that the judge erred in law by upholding the limitation of the right to freedom of expression under Article 33 without undertaking the mandatory, three-part , article 24 analysis to determine if or not the limitation was by law , served a legitimate aim and was the least restrictive measure in circumstances.

LSK is concerned that unless the said sections of the Act are suspended through conservatory order, the entire appeal if successful will be rendered nugatory.

“The validity of the impugned sections is the subject matter both in the judgement and order of the high court sought to be stayed as well as in the intended appeal. Allowing the DPP and IG to arrest and prosecute members of the public at this stage, would render the question of the constitutionality of the statute academic thus defeating the administration of justice by way of effective exercise of judicial authority and scrutiny of Acts said to violate the constitution,” added LSK.

It added that without conservatory order, the court’s final decision on a successful appeal will be a mirage as there can be no use of a favourable judgement to the applicant if bloggers, journalists and whistle-blowers have already been arrested, prosecuted and convicted under the impugned Act.

It also added that Police and prosecution are arresting, arraigning and prosecuting members of the public under the Act for publishing online information on the Covid-19 pandemic and the arrest and prosecution of independent journalists and activists for Covid-19 related publications under statute is likely to have chilling effect on the public.

“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 consequences. Censorship, harassment and punishment for speaking out hinder the fight against the coronavirus outbreak as was the case with Ghana.

Sections 22 and 23 of the Act were challenged on the grounds that they limit freedom of expression by criminalizing ” false publication” and “publication of false information ” in violation of Article 33 and 24 of the constitution.

The legal professional body told the court they are concerned that section 22 and 23 of the Act particularly limits freedom of speech and expression of the applicant and the citizenry of Kenya at large by the use of broad and vaguely worded offences that the government can wield to arrest , investigate and imprison its critics and dissenting voices on Covid-19.

LSK says government has been arresting and prosecuting bloggers for whistle-blowing on suspected violations of Covid-19 protocols, the ministry of health has issued toll free SMS number 988 urging members of the public to anonymously report or ‘mulika’ , anyone who’s supposed to quarantine, but is not or any suspected coronavirus case that is not yet reported.

LSK maintains that in a constitutional democracy like Kenya, a citizen has the right to say or whatever he likes about the government or any of its Covid-19 policies, by way of criticism or comment, so long as his speech does not amount to propaganda for war, incitement to violence or advocacy to hatred under  Article 33(2)(d).

While opposing the case, Attorney General , National Assembly, DPP and National police service said the issuance of conservatory orders saying high court applied the law and the facts independently and suitably found that the impugned provisions were constitutional.

They also said that the right to freedom of expression is not an absolute right and it is subject to limitations provided the limitations are line with the requirements under article 24 of the constitution.

“We humbly submit that the right to freedom of expression contains both positive and negative connotations and the negative connotation restrains the government from unnecessary intruding into the private sphere of an individual”, they adds.

They argued that the positive connotation on the other hand places an obligation on the government 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.

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