This article was first published in the Business Daily September 21, 2017.
The Computer and Cybercrimes Bill 2017 is a major improvement from the two cybercrime Bills published by the Senate and the National Assembly last year.
The objectives are to protect the confidentiality and integrity of computer systems, programmes, data while preventing 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 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.
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 as mobile money outage. Reports of Al-Shabaab destroying telecommunication masts show us that foreign foes target critical infrastructure.
The draft law has a provision on how to deal with a resident who aids a foreigner in cyber-espionage and other attacks on critical infrastructure.
The draft law intends to outlaw false publication. The motivation behind this definitely to curb the fake news menace that has become major issue. While the idea is welcome, there is 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 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 into 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. It also contains provisions on confiscation of proceeds of cybercrime and compensation of victims, which is a major plus.
A conspicuous section of the draft law proposes punishment for offences 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 Justice Mumbi Ngugi in the case of Geoffrey Andere.
The investigation procedures acknowledge the need of a warrant prior to an investigation. Security agents with warrants will lawfully be able to ask service providers to give out data and access to consumer computer systems.