The Computer Misuse and Cybercrimes Act, 2018 is Constitutional, the Court of Appeal has declared.
In a judgement delivered by the Appellate Court judges; Justices Patrick Kiage, Aggrey Muchelule and Weldon Korir, the Bench dismissed claims of unconstitutionality of the Act; raised by the Bloggers Association in the suit arising from an earlier High Court verdict that had affirmed the legality of the said Act.
In its judgement, the Court dismissed the Appellant’s claims of unconstitutionality on up to 24 different sections of the said Act, upon which the Appeal had been premised.
The Appeal had been filed by the Bloggers Association of Kenya (BAKE) citing 42 grounds of appeal against a High Court Judgement dated February 20, 2020 in which Justice Onesmus Makau had declared the Act as Constitutional.
Among the arguments raised by the appellant was an objection to section 50 of the Act, that allows investigative authorities – with a court order – to compel service providers to disclose subscriber information and traffic data for cybercrime investigations.
While the appellant and the supporting respondents argued that this violates the right to privacy under Article 31 and fails to meet Article 24 requirements, the respondents opposed to the appeal countered that the provision is essential for investigating cyber offences and has adequate safeguards.
In their verdict, the Appellate Judges indicated that they were satisfied that the provision “serves a legitimate and important objective”.
The Judges ruled that the said provision aligns with the constitution and was “rationally related to the aim of the Act and has adequate judicial oversight measures that ensure that any limitation to the right to privacy is reasonable.”
The Judges further indicated that the said action was “necessary and not only proportionate but also specific to the investigations being undertaken at the time.”
The Appellate Judges also dismissed the Appellant’s contention that the Act would infringe on their right to privacy, over a provision that allowed security agencies to collect real time traffic data for a period of six months during investigation on suspected cybercrime offenders.
“The length of the period may be necessitated by the kind of crime under investigation. The fact that the collection will be over a length of time does not itself render the provision unconstitutional,” ruled the Judges.
The Appellant had also argued that allowing police officers to obtain information without a court order amounted to a threat to the right to privacy, as it may be prone to abuse.
While the Judges noted the concerns of the Appellant on this, the Bench indicated that there are situations that call for prompt action making it impossible for the investigative authority to move the court for orders.
“In the circumstances, we do not find merit in the appellant’s argument that all investigative steps should be preceded by the issuance of a court order,” they ruled.
The Judges, however, upheld the Appellants arguments that Section 22 and 23 of the Act were unconstitutional.
The two sections are related to criminal offences related to publication of alleged false information.
“In the end, this appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being too broad to the extent that they are likely to net innocent persons. It is only to this extent that we vary the learned Judge’s judgment. Otherwise, all the other grounds of appeal are found to be without merit and are hereby dismissed,” ruled the Judges.
The respondents in the Appeal were the Attorney General, the National Assembly and the Inspector General of Police, the Director of Public Prosecutions among others.
Read: All You Need to Know About the Amended Computer Misuse and Cybercrimes Act
>>> List Of Computer Misuse Offenses That Could Land You In Trouble With Govt
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