Cyprian Nyakundi and Why LSK Has Taken Cybercrime Act to Appellate Court

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.

This follows another case filed by controversial blogger Cyprian Nyakundi who had promised to fight to save future upcoming bloggers.

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.

In April this year, Blogger Cyprian Nyakundi was charged for alleged publication of false information, contrary to section 23 of the Computer Misuse and Cybercrimes Act.

According to the charge sheet he posted on his Instagram account, Cyprian Nyakundi allegedly knew that the information he posted on his Twitter account about the KRA Commissioner General  James Mburu’s was false and was calculated to cause fear and panic among Kenyans. It also says that he maliciously elected to injure Mr Mburu’s reputation as a person.

The charge sheet further says that Nyakundi had on 23rd March 2020 at an unknown place within the Republic of Kenya posted on his Twitter account,

KRA CG jetted back from the US and started having meetings before the 14 days quarantine. My question is, must these guys still fly out? What is more important?”Cyprian, Is Nyakundi @CisNyakundi

Cyprian had been arrested by police after receiving summons by the Directorate of Criminal Investigations. He then presented himself at the Nairobi Central police station, on 24th March 2020. Nyakundi was later released on a Ksh 200,000 bond.

Dagoretti South MP John Kiarie came under immense scrutiny over his Twitter thread claiming that 7,000 people were quarantined by the government in various facilities.

The Health Cabinet Secretary Mutahi Kagwe had refuted these claims saying the figure was grossly exaggerated, saying at the time, that only 2,050 people were under quarantine in 14 government hotels and facilities across the country.

What irks is the fact that the MP was not charged for the alleged alarming posts but some online content creators and bloggers have been charged with publishing false information on their social media platforms about the COVID-19.

Blogger Robert Alai was charged for allegedly publishing false information relating to the COVID-19 pandemic in Kenya after he questioned the government on the actual number of COVID-19 cases in the country.  His charge sheet alleged that he knew that his post would cause alarm and panic in the country.

Blogger Cyprian Nyakundi has been on the forefront fighting against the draconian Cyber Crime law. Nairobi-based Kenya’s most influential Media guru has also been the most affected by the said laws.

The provisions of chapter 23 of the Cybercrimes Act list publication of false information an offence punishable by law, which on conviction, one is liable to a fine not exceeding five million shillings, or a term not exceeding ten years or both.

In a case, the Court of Appeal certified the application urgent and directed the matter to be heard on June 3 by a bench of three judges, LSK through lawyer Dudley Ochiel argue 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.

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.

“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.

LSK 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.

Why is the government arresting and prosecuting bloggers for whistle-blowing on suspected violations of Covid-19 protocols, yet the ministry of health had issued toll free SMS number 988 urging members of the public to anonymously report or ‘mulika’ , anyone who’s supposed to quarantine?

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.

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 added.

The case will be heared tommorow, June 3.

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