Strengths and weaknesses of Cybercrimes Bill

There is a new bill

A revised version of this article was published in the Business Daily newspaper on the 21st of September 2017.

The question of how prepared Kenya is to deal with cybercrimes can no
longer be wished away. Cybercrimes not only cause damage but also
leave their victims embarrassed. Hence, not so many incidences are
reported by the victims. To address this issue, the Leader of Majority
Hon. Aden Duale sponsored the Computer and Cybercrimes Bill in June,
2017. It is a major improvement from the two cybercrime bills that
were published by Senate and the National Assembly last year.

The objectives of the draft act are to protect the confidentiality and
integrity of computer systems, programs, data while preventing the
unlawful use of computer systems. The proposed law is also meant to
facilitate the investigation and prosecution of cybercrimes and
facilitate international co-operation on cross-border cybercrime
matters.

Part two of the bill provides for the offenses covers various offences
in the cyberspace. As expected, hacking offences feature prominently
in this part. Hacking offences are where security measures of a
computer system are bypassed and unauthorised access, interference and
interception take place. To complement the anti-hacking sections, the
possession and use of stuff that can be used to hack for the primary
purpose of committing a crime is going to be outlawed. Sharing of
passwords with unauthorised persons to grant them unauthorised access,
interference and interception is also going to be a crime when the
bill becomes law.

A major positive in the bill are the provisions meant to protect
critical infrastructure. This includes public utilities (electricity,
water), public transportation, communications infrastructure, banking
and financial services among many others. This protection is crucial
because the economy can really suffer in the event of an unplanned
interruption such a mobile money outage. Safaricom recorded losses
earlier in the year when their systems went down countrywide.

Reports of Al-Shabaab destroying telecommunication masts show us that
foreign foes target critical infrastructure. From the Stuxnet attack
on the Iranian nuclear program, it is clear that there is a hanging
threat of cyber-attacks on our critical infrastructure. The draft law
has a provision on how to deal with a resident who aids a foreigner in
cyber-espionage and other attack on critical infrastructure.

Fake News
The draft law intends to outlaw false publications. The motivation
behind this definitely to curb the fake news menace that has become
major issue. While the idea is welcome, there is the fear that the
provision is beyond the scope of the limits of the right to freedom of
expression as contained in the constitution. A better approach would
have been to perhaps set a test to check the damage caused by the fake
news. The danger of this, damage; is that it makes it similar to the
old crime criminal defamation. In the landmark Jackline Okuttah case,
the High Court declared the crime of criminal defamation to be
unconstitutional.

Children’s rights find their way in this draft law with a provision
cracking the whip on online child pornography. This provision together
with the provision on cyber stalking and bullying will help save lives
of many internet users who meet human predators online. Computer
forgery and fraud are also going to be crimes once the bill becomes
law and this will help the many who get scammed online. The bill also
contains provisions on confiscation of proceeds of cybercrime and
compensation of victims, which is a major plus considering this is
criminal law.

The vague
A conspicuous section of the draft law proposes a punishment for
offenses under any other law through the use of a computer section.
The openness of this provision makes it vague and open to abuse the
way section 29 of the Kenya Information and Communication Act 1998
was. The KICA provision was declared unconstitutional in 2016 by Mumbi
Ngugi J in the case of Geoffrey Andere.

The investigation procedures acknowledge the need of a warrant prior
to an investigation also the exceptions are based on the Criminal
Procedure Code. Security agents with warrants will lawfully be able to
ask service providers to give out data and access to consumer computer
systems. The draft law provides for a protection of the service
provider from any liability.

The last part contains provisions on extradition and cooperation with
foreign nations in investigation and trial of cyber criminals. This is
a plus considering the cross border nature of cybercrimes.

The bill is clearer, well intentioned and covers much of issues to do
with cybercrime. With public participation and stakeholders input, it
will be a laudable cybercrimes law.

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