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Bloggers gain upper hand in dispute over Kenya's cybercrime law

Legal wrangling over Kenya's cybercrime law

Twenty-six sections of Kenya's Computer Misuse and Cybercrimes Act 2018 will remain suspended until 5 November 2018 when the matter will be placed before Judge Chacha Mwita for directions and continuity of the case.

This is according to a statement issued by the Bloggers Association of Kenya (BAKE), which in May this year petitioned the courts to have specific sections suspended citing them as 'problematic'.

In its petition BAKE said that in terms of Section 16 and 17 (which deal with unauthorised interception of computer systems, programs or data), it would be difficult to prove intent.

The organisation believes there was insufficient public participation in drafting the law and most of the sections lack clarity.

In its latest statement BAKE said Judge Wilfrida Okwany threw out an application filed by the Attorney General seeking to have the suspension of the 26 sections lifted pending the hearing and determination of the case.

According to the organisation, the Attorney General had argued that the suspension ordered by Justice Chacha Mwita in a case filed by BAKE was erroneous as it was heard and determined ex parte.

BAKE added that the Law Society of Kenya (LSK) is also challenging the cybercrimes legislation and Judge Okwany directed that the case be placed before Judge Mwita.

Under attack

In July 2018, the Communications Authority of Kenya (CA) announced that the country had experienced 7.9 million cyber attacks between January and March 2018.10.04

According to the regulator there were 5.69 million reported malware attacks compared to 7.88 million in the previous quarter, while the number of Botnet and DDOS attacks also dropped from 1.5 million to 1 million.

At the Africa Cyber Defence Summit 2018 in Nairobi, countries on the continent were urged to establish Computer Incident Response Teams (CIRT) and Cybersecurity Emergency Response Teams (CERT) to tackle an increase in cybercrime.

Kenya's legislation enacted to combat cybercrime and establish the National Computer and Cybercrimes Coordination Committee has been met with a mixed response - with some lobby groups, including BAKE, LSK and Paradigm Initiative, expressing concern over the lack of clarity in the Law and its potential impact on freedom of expression.

Brian Pinnock representing Mimecast Africa and the Middle East said, "While most of the news coverage has focused on the perceived negatives of the legislation - including restrictions around freedom of expression and access to information - individuals should be pleased that cyber criminals will now face consequences. According to a 2017 Serianu study, cybercrime cost Kenya Sh21.1 billion in 2017, so it seems that criminals have had free rein up until now."

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