Decoding Laws on Cyber Bullying; Redress for victims of Cyber Bullying.
By Naomi Wachuka
It is quite unfortunate that the
unparalleled advantages of technology and in particular social media have also brought with it unprecedented
pain and damage to our social fabric. Bullying and harassment have become a
norm in social media platforms such as Twitter, Facebook and Instagram
and other emerging platforms. Initially a vice prevalent in schools and
workplaces, bullying in Kenya has now found a seat at the very altar of modern
human interaction. Worse, the bullies are merciless and hide under presumably faceless user names/handles and in same cases groups.
Kenyans
on social media have either been a victim or perpetrator of cyberbullying.
Cyberbullying is not limited to posting or tweeting untrue or defamatory
messages. It involves retweeting, liking tweets, sharing posts.
It
is an unfortunate reality that Kenyans can be unforgiving and vicious on social
media. And no one is exempted. In the recent past, social media has torn the
status and reputation of figures such as West Pokot Governor John Lonyanagapuo,
renown journalist Yvonne Okwara and erudite lawyer Donald B. Kipkorir. Most
recently Brenda’s (Covid-19 patient zero) reputation was mercilessly torn apart
on social media after her interviews on television and radio.
Section
27 of the Computer Misuse and Cyber Crime Act 2018 provided the following on
cyber harassment.
1)
A person who, individually or with other persons, willfully communicates, either
directly or indirectly, with another person or anyone known to that person,
commits an offence, if they know or ought to know that their conduct—
(a)
is likely to cause those persons apprehension or fear of violence to them or
damage or loss on that persons’ property; or
(b)
Detrimentally affects that person; or
(c)
Is in whole or part, of an indecent or grossly offensive nature and affects the
person.
(2)
A person who commits an offence under subsection (1) is liable, on conviction,
to a fine not exceeding twenty million shillings or to imprisonment for a term
not exceeding ten years, or to both.
The
enactment of the Act elicited reactions from various sections of people. For
instance, the Bloggers Association of Kenya filed a petition in 2018 seeking
among other prayers, suspending the coming into force of the Computer Misuse
and Cybercrimes Act, 2018 and in particular the coming into force of Sections
27 among other sections of the Act, 2018 for reasons that various sections of the act
were unconstitutional as they violated the constitutional freedom of expression
as prescribed under Article 33 of the Constitution of Kenya.
After
hearing the petition, the Learned Justice Makau dismissed the petition and held
that the Act does not infringe or threaten the fundamental freedoms and rights
enshrined in the Constitution and that the challenged sections were
constitutional. Most importantly, the Court held that in exercising the freedom
of expression, every person shall respect the rights and reputation of other
and that the freedom of expression does not extend its immunity to speech that
amounts to harassment of another person.
In
light of the foregoing, a victim of cyber harassment can now file a formal
complaint with the police and avail to the police evidence of the harassment.
It is worth noting that cases of cyberbullying are investigated by DCI Kenya.
Alternatively,
a victim of cyberbullying may report an incident to the Communication Authority
who shall with the help of DCI investigate the incident reported, in either of
the following manner;
1. Registering a form complaint with the
communications authority through the
National KE-CIRT/CC website > https://www.ke-cirt.go.ke/<,
2. Sending a letter detailing your case
to the Director-General, CA Kenya via P.O. Box 14448 – 00800 Nairobi
3. Reporting the incident physically to
the CA Office at CA Centre, Waiyaki Way.
5. Calling the following hotlines:
+254703042700 or +254730172700.
