How Ruto watered down Raila's activism moments after his death

The new Computer Misuse and Cybercrimes (Amendment) Act, 2024, signed into law by President William Ruto about four hours after Raila Odinga's death, threatens freedom of expression, the very thing the former Prime Minister fought for his entire life.

Even though several causes are critical in strengthening protections against the rapidly evolving threats of online fraud, identity theft, misinformation, and cyber harassment, beneath the surface of these intentions are clauses whose ambiguous language and heavy-handed enforcement mechanisms pose serious threats to free speech, media freedom, and the right of citizens to criticize those in power.

"Any person who provides false information maliciously intended to injure another person commits the offence chargeable under section 22 of the Act," reads the Act.

Lawyers say the new law is an affront to the freedom of expression, especially on Clause 10, which vaguely criminalises publishing "false" content.

"It basically states that those found guilty of digital defamation can be sentenced to up to three years in jail or fined up to Sh5 million, or both. While combating misinformation is vital, the vague wording—especially what constitutes “false” content—opens a door for subjective interpretation. This ambiguity is dangerous. It can allow government officials to interpret criticism, investigative journalism, or whistleblowing as defamatory content worthy of heavy penalties, instilling fear among media practitioners and citizens who speak out," warns Peter Wena. 

The law offers harsh punishment of three years in jail or Sh20 million fine, or both.

"There are two competing rights. The rights to privacy and freedom of expression. The right to privacy is not absolute. But the freedom of expression is guaranteed under the Constitution. And the only limitations are on matters of grave national security. The two rights are balanced in this way, you are allowed to talk as much as you want, but you can be sued. But the right to freedom of expression is sacrosanct," argues Wena.

The Act also expands the offence of cyber harassment to cover conduct “likely to cause” someone to commit suicide. However, this provision doesn’t spell out what that means.

The law also broadens definitions to cover a range of crimes, including unauthorised computer access, phishing scams, SIM card fraud, and cyber harassment.

Clauses focusing on cyber harassment, extended to include “persistent unwanted digital communication” in Clause 2, impose penalties of up to five years imprisonment or fines up to Sh10 million.

"Such broad terms may be used against activists or opposition voices engaging robust political debate or digital rallies, stifling healthy democratic discourse," says Wena.

Further, Clause 3 gives the government wide powers to block websites, online content, or devices suspected of promoting illegal activity. The broad, ambiguous and vague language of the amendment, such as “where it is proved”, “promotes illegal activities” or “extreme religious and cultic practices” can be misinterpreted and will be used by government zealots to limit fundamental rights and freedoms.

In June last year, the government shut down the internet to stifle Gen Z demonstrations and in November 2023, disabled messaging application Telegram.

The Act allows the National Computer Cybercrimes Co-ordination Committee to issue a directive to shut down websites or social media platforms if they promote illegal activities or violate national security. This also overlaps functions of the Communications Authority of Kenya.

"The ability to impose such restrictions without prior judicial oversight or independent appeal processes places significant unchecked power into the hands of authorities. This risks being a muzzle on critical news sites, blogs, or social media platforms exposing government failures or corruption," clarifies Wena. 

In Clause 4, law enforcement agencies have been given sweeping powers to demand user data from service providers. But experts say without proper safeguards, this could facilitate political spying on journalists or opposition figures, undermining confidentiality, whistleblower protections, and privacy.

"Kenya’s media has long played a crucial role in holding government officials accountable. But with the laws, journalists face a chilling threat. Investigative stories on corruption, abuse of power, or policy failures might be bulldozed under the weight of expensive legal battles or harsh sentences," says Fidel Limo.

He appreciates clauses addressing cybercrimes like SIM-swap fraud, financial scams, terrorism-related digital offenses, and child protection.

"These are necessary and welcome protections in a digitising society. The government insists that these powers are essential to shield vulnerable Kenyans. The challenge remains ensuring the law does not slide into censorship under the guise of security. Without judicial oversight and clear safeguards, the risk of abuse is high," says Limo.

SIM-swap fraud now attracts up to 10 years jail and fines exceeding Sh15 million, while child pornography offenses have penalties of up to 20 years imprisonment.

Lawyer Ndegwa Njiru argues that President William Ruto's administration is criminalising the right to self-expression guaranteed in the constitution.

“The law is trying to precipitate the basis upon which the government will switch off the internet during the elections,” he says.

He claims the government can pull down a site without the user’s knowledge. “This law has also widened the scope of individuals who can complain about a particular publication online,” he says.

He also questioned the aspect of retrospectivity in the enactment of the law, posing whether it will affect posts done before the law or posts that will be made after the enactment of the law.

“There is also the question of having a problem of enforceability. Are they going to form a team to police social media? They are mutilating the gains that have been made,” he added.