AG, MPs want court to lift freeze on cybercrime law enforcement

Attorney General Dorcas Oduor and members of the National Assembly have urged the High Court to lift the orders suspending the implementations of some sections of Computer Misuse and Cybercrimes Act, 2024, arguing that the freeze has paralysed efforts to combat the rising tide of online crime.

Appearing before Justice Lawrence Mugambi on Wednesday, the Attorney General and Parliament, through lawyers Paul Nyamodi and Mbarak Ahmed to set aside the conservatory orders issued last month since the same have hindered the work of investigative agencies and left citizens vulnerable to digital threats such as online fraud, identity theft, and cyberbullying.

In an urgent application, the Attorney General, represented by Nyamodi, seeks to lift the interim orders, describing them as “premature” and “legally unsound.”

Nyamodi argued that the High Court issued the orders despite an ongoing Civil Appeal Number 197 of 2010, where the Bloggers Association of Kenya is challenging the constitutionality of similar provisions in the original 2018 Cybercrime Act before the Court of Appeal.

“The High Court ought to await the pronouncement of the Court of Appeal on the constitutionality of Section 27 before proceeding further,” Nyamodi stated, adding that issuing overlapping rulings could lead to conflicting judicial outcomes.

He further insisted that the State’s position should be heard before any conservatory relief is extended.

The Attorney General emphasised that the amendments to the  Cybercrime Act were constitutional and necessary to address emerging digital crimes. 

“The impugned law is a crucial tool in protecting citizens from online harm. It was enacted following due legislative processes, including public participation and parliamentary debate,” AG says

Nyamodi also opposed the consolidation of six petitions filed by Embakasi East MP Babu Owino, Kirinyaga Woman Rep Jane Njeri, activist Reuben Kigame, Francis Awino, and the Kenya Human Rights Commission (KHRC), arguing that there were several issues that needed to be addressed before proceeding with the consolidation of the cases.

“When we were before the High Court in Kerugoya on Monday last week, we opposed the request to allow Senator Murango James and Baragwi MCA David Mathenge to participate in these cases. Again some of the petitions are subjudice, and others raise different issues. We seek to be heard before any consolidation or joinder of the two politicians is considered,” Nyamodi argued.

Mbarak, representing Parliament, echoed Nyamodi’s position, stressing that the conservatory orders should be set aside to allow the Cybercrime Act to take effect.

“We request that, before consolidation is considered, the application to set aside the interim orders suspending the implementation of the Cybercrime Act be heard. It is our concern that interim orders have already put a hold on the implementation of the Act, and we believe it is crucial for the court to address the validity and scope of these orders before proceeding with the consolidation of the petitions,” Mbarak stated.

“These interim orders could lead to unnecessary delays and confusion, especially given the potential impact on ongoing legislative processes. The court's timely intervention on the application will ensure clarity and prevent further complications in the administration of the law,” he added.

The court further heard that the Communication Authority of Kenya (CA), CS Interior Tuya, and the Ministry of ICT, through State Counsel Emmanuel Bitta and Patrick Lutta, also seek to have the interim orders lifted pending the hearing of the cases.  

But the petitioners led by gospel singer and activist Reuben Kigame and the KHRC, represented by Lawyer Elias Mutuma, informed the court that they are opposed to the move to lift the orders, urging the court to maintain the suspension pending the hearing and determination of the cases.

“We are not opposed to the consolidation; they emanate from the same cause of action. We can maintain the status quo regarding the ongoing orders,” he stated.

Lawyer George Sakimpa, representing Hon Jane Njeri, also supported the consolidation but sought an extension of the conservatory orders. “We are not opposed to the consolidation but will be seeking the extension of the conservatory orders,” he added.

In their petitions, the petitioners argued that the amendments were enacted without sufficient public consultation and that several provisions of the law threaten freedom of expression and the right to privacy.

“The amendments introduce offences that criminalize legitimate expression, contrary to Articles 33, 34, and 31 of the Constitution,” the petitioners argued. “This law, if enforced, would have a chilling effect on press freedom and digital expression.”

The petitioners further contended that the sections of the law addressing false publication, cyber harassment, and unauthorized access to data give the government sweeping powers that could be used to silence critics and restrict online activism.

“The amendments pose a direct threat to free speech, freedom of the press, and citizens’ digital privacy,” they argued, warning that the law could be used to criminalize legitimate online expression.

After hearing the brief oral submissions, Justice Mugambi directed all parties to consult on how to proceed with the applications by the Attorney General, Parliament, CA, and the Ministry of ICT, seeking to lift the suspension orders, as well as the issue of consolidating the petitions and the joinder of the two politicians and the Katiba Institute as an interested party return to on Thursday afternoon for further directions

“The interim conservatory orders issued herein shall remain in force until the inter-partes hearing on Thursday, 12:30 PM, when the cases will be heard,” ruled Justice Mugambi.

The Cybercrime (Amendment) Act, 2024 introduces stiffer penalties for online offences, including the publication of false information, cyber harassment, impersonation, and unauthorized access to computer systems.