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Although Kenya has enacted a number of directives, policies, and laws to deal with various aspects of the fallout from the COVID-19 pandemic, it has opted to use an existing law to curb falsehoods and misinformation surrounding the pandemic. The Computer Misuse and Cyber Crimes Act of 2018, which includes clauses criminalizing “false information” and “publication of false information,” is reportedly being used to make arrests and charge persons allegedly engaged in such acts. A petition challenging the constitutionality of the law before the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi was quashed in February 2020, right before the arrival of the pandemic in Kenya.
As of August 20, 2020, Kenya had recorded 30,636 confirmed COVID-19 cases and 487 deaths. Since the first COVID-19 case was reported in the country on March 13, 2020, Kenya has issued a number of directives, policies, and laws aimed at tackling the pandemic and minimizing its impact. However, it is also relying on existing laws to deal with some challenges related to COVID-19.This includes the use of the 2018 Computer Misuse and Cyber Crimes Act to address the spread of misinformation and falsehoods about the pandemic.
II. The Constitution and the Computer Misuse and Cyber Crimes Act
The Constitution of Kenya accords every person the right to freedom of expression, including “freedom to seek, receive or impart information or ideas, . . . freedom of artistic creativity, . . . and . . . academic freedom and freedom of scientific research.” These freedoms do not “extend to . . . propaganda for war . . . , incitement to violence . . . , hate speech . . . , or advocacy of hatred . . . ” The Constitution places another caveat on such rights, stating that “[i]n the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.” In addition, section 24 of the Constitution permits the imposition of limitations on such rights in certain circumstances if those limitations meet a specific set of tests.
Enacted in May 2018, the Computer Misuse and Cyber Crimes Act includes a provision criminalizing “false publication,” which states as follows:
(1) A person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings [about US$46,285] or to imprisonment for a term not exceeding two years, or to both.
(2) Pursuant to Article 24 of the Constitution, the freedom of expression under Article 33 of the Constitution shall be limited in respect of the intentional publication of false, misleading or fictitious data or misinformation that —
(a) is likely to —
i. propagate war; or
ii. incite persons to violence;
(b) constitutes hate speech;
(c) advocates hatred that —
i. constitutes ethnic incitement, vilification of others or incitement to cause harm; or
ii. is based on any ground of discrimination specified or contemplated in Article 27(4) of the Constitution; or
(d) negatively affects the rights or reputations of others.
The Act also criminalizes the “publication of false information,” the elements of and punishment for which are as follows:
A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence and shall on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years, or to both.
Upon the enactment of the Act, the Bloggers Association of Kenya (BAKE) swiftly filed a petition before the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi challenging the constitutionality of various provisions of the Act, including the “false publication” and “publication of false information” clauses. One of the issues before the court was whether a number of provisions of the Act, including these two clauses, were inconsistent with section 24 (the limitations of rights and fundamental freedoms clause) of the Constitution of Kenya. In a decision issued on February 20, 2020, the Court found both clauses to be constitutional, holding that “[h]aving considered the rival submissions I find no basis that the correct position is that the truth is not a necessary condition to the freedom of expression.”
III. Curbing False Information Relating to COVID-19
It appears that Kenya is relying on the Computer Misuse and Cyber Crimes Act to curb the spread of misinformation relating to the COVID-19 pandemic. While it is difficult to locate statistical information relating to the prevalence of such acts and the level of enforcement of the Act by the government, news reports indicate that Kenyan police have arrested individuals allegedly engaged in the spread of false information about the pandemic. For instance, according to a news report dated March 16, 2020, the Directorate of Criminal Investigations of the National Police Service arrested a 23 year old man for publishing misleading and alarming information relating to the pandemic. The same source also noted that the person would be charged under the “publication of false information” clause of the Computer Misuse and Cyber Crimes Act. Another news report, dated April 24, 2020, noted that a 41 year old man was arrested and faced prosecution under the same Act for a tweet claiming “that he’d heard there was an outbreak in Mombasa, the strategically vital port for east Africa.”
Prepared by Hanibal Goitom
Chief, FCIL I
 Id. § 33(2).
 Id. § 33(3).
 Id. § 24.
 Id. § 23.
 Id. paras. 61, 86 & 150.
Last Updated: 12/30/2020