OCHIENG: Review Cybercrimes Bill to protect freedom of expression

Cyber security /ILLUSTRATION

Few Kenyans knew Rose Njeri before her ridiculous arrest and subsequent arraignment in early June this year.

Many couldn’t believe their ears when charges against the soft-spoken software developer and digital activist were read out in a Nairobi court: She had been charged with interfering with the parliamentary Finance committee system.

Just for creating an app that Kenyans could use to submit comments on the Finance Bill 2025, Njeri was accused of breaching the computer misuse and cybercrime law. Detectives said the platform she created enabled users to automatically send mass emails to the National Assembly’s Finance committee, “thereby interfering with the normal functioning of the systems”.

Njeri’s case came just a year after the 2024 bloody Gen Z-led protests against the Finance Bill 2024. Many saw it as part of the state’s crackdown on dissenting voices, particularly those opposed to government plans such as the Finance Bill. Most of those arrested have been charged under the controversial Computer Misuse and Cybercrimes Act enacted in 2018.

This is the same law that was used to arrest Albert Ojwang’, a teacher and a blogger, after a senior police officer accused him of publishing defamatory online content. Unlike Njeri, Ojwang’ wasn’t lucky. He died at the hands of the police in a cell in Nairobi.

Unfortunately, the level of censorship of legitimate speech online could intensify should the current efforts to amend the Act and pass the Bill in its current form succeed. In its current form, the Computer Misuse and Cybercrimes (Amendment) Bill, 2024, which has already gone through the First Reading in Parliament, will curtail free speech online, as the government is likely to use it against those it views as using the digital space to criticise it.

For one, the Bill grants sweeping powers to the National Computer and Cybercrimes Coordination Committee (NC4) to shut down websites and applications if they “promote illegal activities, child pornography, terrorism, and extreme religious and cultic practices”.

Whereas no one disputes the need to block any sexual abuse material and stern action to be taken against content promoting acts of terrorism, such a provision could lead to abuse and overreach by NC4 due to its vague terminology, absence of oversight, or lack of limitation on the period of blocking. It means any speech online or on social media deemed to “promote illegal activities” could be used as a basis to block an entire website or application indefinitely.

The provision raises several questions: Who decides what counts as “extreme religious” content? On what evidence and what standard? With what right of appeal? Given the Bill is silent on such issues, it is hard not to see it as a window to censorship.

Human rights groups have rightly warned that the proposals contravene international standards on freedom of expression. ARTICLE 19, for instance, has called for the withdrawal of the Bill, arguing that vague offences and administrative blocking powers fail the necessity and proportionality tests at the heart of human rights law.

The NC4 blocking clause is not the only problematic part. The Bill widens the scope of “cyber-harassment”, including where conduct is likely to cause someone to commit suicide. As has been pointed out by legal experts, the inclusion of the phrase “likely to cause a person to commit suicide” seeks to enhance protection against cyber harassment and its psychological effects. However, it’s ambiguous on the “cause”, and may result in arbitrary enforcement, which could lead to the criminalisation of public discourse, activism, or political speech. It could be abused to target critics, bloggers and other content creators, especially in a heated political climate. It should be refined to target clear cases of harassment and establish specific thresholds for liability, ensuring that it aligns with constitutional rights and due process.

Things could worsen for whistleblowers, and journalists should Parliament pass the Bill. The Bill has proposed provisions that make it easier for authorities to lock up whistleblowers or reporters on claims of purveying “false or misleading information”.

Picture this: A whistleblower exposes corruption in government contracts. Officials deny the allegations and label the evidence “false”. Under the Bill, the whistleblower could be jailed under Clause 4 or be forced to pay a steep fine. To make matters worse, the Bill gives the state powers to decide what counts as “false”.

For journalists, especially investigative journalists, Section 4 of the Bill, which talks about identity theft, could be a minefield. David Omwoyo, the Media Council of Kenya CEO, recently cited legal ambiguities that could result in overreach during the Bill’s implementation. He pointed out the definition of “fraudulent intent” fails to clarify whether identity theft must involve malicious intent or financial gain.

Such concerns are not far-fetched. In recent years, we have seen how “anti-fake news” laws have been abused. In Tanzania journalists have been jailed for reporting on Covid-19 data that contradicted official numbers. In Uganda, critics of government policy have been charged with “misleading the public” online. These laws, sold as tools to protect society, end up silencing dissent and entrenching impunity.

We should be careful not to erode our hard-won constitutional liberties. The Bill should be reviewed to safeguard freedom of expression.

The writer is the CEO of The Kenya Alliance of Resident Associations