The Computer Misuse and Cybercrimes Act defines and criminalizes cyber harassment (suspended), cybersquatting (suspended), illegal access of information (applicable), identity theft (suspended) and fake news (suspended) through provisions outlawing false publications, publication of false information and publication of child pornography.
Section 27 of the Act states:
27.Cyber harassment
(1) A person who, individually or with other persons, wilfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct —
(a) is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons’ property; or
(b) detrimentally affects that person; or
(c) is in whole or part, of an indecent or grossly offensive nature and affects the person.
(2) A person who commits an offence under subsection (1) is liable, on conviction, to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or to both.
(3) A person may apply to Court for an order compelling a person charged with an offence under subsection (1) to refrain from—
(a) engaging or attempting to engage in; or
(b) enlisting the help of another person to engage in, any communication complained of under subsection (1).
(4) The Court —
(a) may grant an interim order; and
(b) shall hear and determine an application under subsection (4) within fourteen days.
(5) An intermediary may apply for the order under subsection (4) on behalf of a complainant under this section.
(6) A person may apply for an order under his section outside court working hours.
(7) The Court may order a service provider to provide any subscriber information in its possession for the purpose of identifying a person whose conduct is complained of under this section.
(8) A person who contravenes an order made under this section commits an offence and is liable, on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding six months, or to both.
Due to Petition 206 of 2018, Blogger Association of Kenya (BAKE) versus Attorney General and Others, the above section and 26 other sections of the Act were suspended on 30th May 2018 and are currently not in force. Consequently, we currently do not have any binding legal definition of online harassment in Kenya. The BAKE petition challenges the suspended sections for being unconstitutional and particularly contrary to the rights to freedom of expression and freedom of media as well as out of alignment with Article 24 that prescribes standards for limitation of constitutional rights. We await the conclusion of this case in order to get the way forward for prosecution of cyber harassment cases in Kenya.
