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Enhancing cybersecurity ahead of 2022 elections: Balancing act for new committee

The newly unveiled National Computer and Cybercrimes Coordination Committee (NC4) has been tasked with cracking down on misuse of social media especially as the country approaches the General Election in 2022. Interior Cabinet Secretary Fred Matiang’i unveiled the secretariat at the Kenya Institute of Curriculum Development in Nairobi on November 4, 2021, where he described social media abuse as a major threat to national security and integration. “As we approach the General Election, our number one challenge is the misuse and abuse of social media,” Dr Matiang’i said. The Kenyan General Elections of 2013 and 2017 were subject to mass interference via social media disinformation campaigns that effectively swayed voter preferences. The timely establishment of the NC4 is being heralded as a proactive step towards ensuring the upcoming General Election is a truly democratic process, free of ethnic violence that has simmered under the surface since the 2007/08 post election violence.

The NC4 has its roots established within the legal framework of the Computer Misuse and Cybercrimes Act (CMCA). The CMCA designates offences relating to computer systems and provides a framework to enable timely and effective detection, prohibition, prevention, response, investigation, and prosecution of computer and cybercrimes. Initially enacted in May 2018, the CMCA was immediately challenged before court by the Bloggers Association of Kenya (BAKE) on grounds that the provisions of the CMCA were unconstitutional. In February 2020, the challenged provisions were determined to be constitutional by High Court Judge James Makau. Disconcertingly, the courts have failed to successfully prosecute any individuals suspected of committing offences under the CMCA, despite Kenya experiencing an 11.9% increase in cyber threats since February 2020. 

Overview of the NC4

Principally, the NC4 shall advise the Government on security related aspects of the Kenyan cyberspace and shall report to the Interior CS on matters related to internal security. The NC4 shall receive and and act on reports relating to cybercrimes such as cyber espionage, false publications and publication of false information, computer fraud and forgery, subversion, cyber terrorism and other computer related offences enshrined within the CMCA.

The NC4 is composed of representatives of various governmental departments and agencies. The multi-faceted composition of the committee promises to provide collaborative activities that shall expedite investigation and prosecution of cybercrimes. The CMCA stipulates the Interior ministry Principal Secretary to serve as the chairperson of the NC4. The remainder of the secretariat comprises of designated representatives of the ICT Principal Secretary, the Attorney-General, the Chief of Kenya Defence Forces, the Inspector-General of the National Police Service, the Director-General of the National Intelligence Service, the Director-General of the Communications Authority of Kenya, the Director of Public Prosecution, and the Governor of the Central Bank of Kenya.

Interior PS Karanja Kibicho, the current chair of the NC4, further emphasized that the unveiling of the secretariat will seek to deter rampant abuse and character assassination on social media. However, the secretariat will have to contend with the complex interactive nature of social media networks, where the proliferation and consumption of news is not separable from interaction around news. As such, news is embedded in interpersonal interactions between social media users, whereby reading, sharing, and commenting are considered elements of news consumption.

Anticipated developments following the launch of NC4

The launch of NC4 is expected to coincide with an increase in government requests to social media giants for user data to facilitate investigation and prosecution of cybercrimes. These requests shall take the form of:

  • Legal process requests from governments that are accompanied by a legal process such as a search warrant;  
  • Emergency disclosure requests: Law enforcement may submit requests without prerequisite legal process where a person may be in serious physical danger; and  
  • Preservation requests which seek to set aside a copy of specific information while the relevant government agency applies for legal process to compel the disclosure of the sought after information.

Furthermore, the launch of NC4 has reignited reservations over the criminalisation of defamation, in particular, the conceivability of the CMCA provisions to unconstitutionally limit freedom of expression. Predominantly, concerns emanate from the CMCA’s vague provision on false publications and defamation, and the potential prejudice that social media users, bloggers, journalists, and free speech advocates in Kenya may be subjected to. The NC4 while fulfilling its prioritised mandate to minimize misuse of social media, should remain cognizant of the Jacqueline Okuta & another v Attorney General [2017] case, which affirmed that defamation should remain a civil offence. The petitioners successfully demonstrated that the offence of criminal defamation is not reasonably justifiable in a democratic society. Therefore, criminal sanctions on speech ought to be reserved for the most serious cases that constitute propaganda for war, incitement to violence, hate speech, or advocacy of hatred on discriminatory ground or ethnic incitement. 

It remains to be determined how and if the NC4 can strike a balance between curbing hateful and insightful online content and the right to freedom of expression as we countdown to the 2022 General Election.

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