The Computer Misuse and Cybercrimes Act 2018, which was amended at the end of last year, has come under scrutiny as it is being used by the government to target those it views as utilising online spaces and apps to speak up against it. During the recent anti-government protests, Rose Njeri was arrested under the Act for creating an app that would make it easier to submit comments regarding the Finance Bill 2025. Later the same month, Albert Ojwang was arrested under the same Act for purportedly publishing anti-government content online, resulting in his sudden death at the hands of the police.
Notably, even before it was passed into law, the Computer Misuse and Cybercrimes Bill had raised eyebrows. Some of the concerns raised included the broad sweeping provisions that required persons using web-enabled devices to exercise caution so as not to cause harm and naming numerous actions of usage as ‘intent to commit an offence’ rather than specifically naming offences that can be found under the Penal Code. These broad definitions, as we have now seen, have been used to arrest those who speak up. They are accused of intending to commit acts of terrorism, as the lack of proper definitions allows.
It is important for Kenya to curb cyberbullying and other cybercrimes. However, it is clear that this law is being misused by the government to suppress freedom of speech instead of it being used to protect civilians. There are multiple instances that persons online have violated the rights of other individuals online. Indeed, there are some demographics that are specifically targeted for abuse online who would benefit from a law like this one so that they can get some redress. Outside of defamation, the Kenyan courts are never called upon to address questions of cyberbullying, doxing, and cyberstalking.
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Women, in particular, have little recourse when faced with threats online. In recent years, with the rise of femicide cases, we have witnessed women being severely harassed online for merely existing. One worrying case is the gory occurrences after the murder of Ivy Wangechi. After her former partner drove across counties to murder her with an axe while she was at university, women spoke about the horrors of the crime. Rather than be met with sympathy, men would respond with images of axes and coffins, using these as a subtle threat that they were coming for the women who spoke up next. The matter became so dire that a song was released threatening women with murder by use of an axe, and this song was again widely circulated on social media platforms. No woman took this matter to court, and it is worrying to consider how many more femicides were inspired by the murder of Wangechi.
Aside from acts of femicide, several other minority groups could do with some protection from the law. It is, for instance, illegal to share another person’s HIV status, even though we often see employers coming online to announce that their employees, usually their house helps, are HIV positive and have therefore been summarily dismissed. Whilst it is possible and simple to seek redress for unlawful termination, the courts ought to take these matters up as cases of doxing as well, if the Internet is to become a safer place for all.
Many vulnerable persons often do not have the resources to bring forward a criminal matter. It should be possible to handle cases of cyberstalking, cyberbullying and doxing as small civil claims that result in a fine being paid, especially when the harm done is not major. A tribunal for such matters ought to be created by the Office of the Chief Justice, if we are to move from government weaponisation of law to civilian application. Ultimately, however, the amendments made on this Act ought to be completely done away with. It is now obvious that they will bring more harm than good.
Ms Gitahi is an international lawyer
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By Njahira Gitahi