BAKE had sued the AG, Parliament, Inspector General of Police and the Director of Public Prosecutions (DPP) on May 29 2018. It was their contention that 26 sections of the Cybercrimes Law threaten the freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing. Justice Chacha Mwita heard their plea and suspended the 26 sections.
In their application before Justice Wilfrida Okwany on 3rd July, the AG argued that the suspension ordered by Justice Chacha Mwita was erroneous as it was heard and determined exparte. The AG also said that the suspension sought by BAKE was based on the fact that BAKE fears the online users will be arrested and charged using unconstitutional Act but up to now none has been arrested. They added that each case can be addressed in case by case basis.
BAKE, through its lawyer, Mercy Mutemi, had filed a notice of preliminary objection and an affidavit sworn by its General Manager, Jane Muthoni, that lifting the suspension on the 26 sessions would spell doom to the 51 million internet users in Kenya. It argued that AG’s loyalty should be to The Constitution, seeking to protect promote and uphold Constitutional values rather than the implementation of an Act of Parliament.
Article 19 who are interested parties of the case through Demas Kiprono also asserted that Section 5 the Act is trying to reintroduce the device management system that was found unconstitutional by the High Court in the case of Okiya Omtatah Vs the Communication Authority of Kenya.
The ruling in the application by the AG will be made on October 1st 2018.