Decoding Laws on Cyber Bullying; Redress for victims of Cyber Bullying.

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.

For a long time, the only way to tackle cyberbullying was promoting the importance of digital empathy and digital etiquette. This was a completely unenforceable and very subjective solution. Kenyan law had been passive on cyber harassment for a long time but it has finally caught up with the times through the enactment of the Computer Misuse and Cyber Crime Act 2018. Now victims of cyber harassment have an avenue to seek redress. 

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.

4.      Sending a detailed email to incidents@ke-cirt.go.ke.

5.      Calling the following hotlines: +254703042700 or +254730172700.