- President Uhuru Kenyatta approved to criminalize cyber offences such as computer fraud, cyber-stalking, child pornography and unauthorized access to computerized systems.
- Cybercriminals have identified the Kenyan digital economy as a thriving ecosystem with questionable resilience against cyber-attacks.
- Every offence found under the Computer and Cybercrimes Bill which occurs to protected computer systems attracts a twenty-five-year imprisonment term, twenty-five million shillings or both
Chaired by President Uhuru Kenyatta on April 6th, 2017, the Cabinet approved the details that criminalize cyber offences such as computer fraud, cyber-stalking, child pornography and unauthorized access to computerized systems.
The latter highlights the Government’s concern regarding the escalated cybercrime risk within the region. Per a 2016 Cybersecurity Report published by Serianu, a whopping $175 million has been pilfered from Kenya’s economy by savvy cybercriminals who have identified the Kenyan digital economy as a thriving ecosystem with questionable resilience against cyber-attacks.
The Computer and Cybercrimes Bill has been drafted with the following legislative objectives; to protect the confidentiality, integrity and availability of computer systems, programs and data; prevent the unlawful use of computer systems; facilitate the investigation and prosecution of cybercrimes; and to facilitate international co-operation in the achievement of the Bill’s objectives.
A perusal of the Bill will demonstrate that it is vastly grounded on the Articles present in the Budapest Convention on Cybercrime passed by the Council of Europe in 2001. This action highlights Kenya’s legislators’ conviction to ensure that the Kenyan digital economy achieves international standards in terms of protection against local and foreign cybercriminals, their dedication towards enabling litigation support for victims and the successful prosecution of cybercriminals.
The following is a summary of the pros and cons of the Bill, as well as our suggestions as to how to best improve the drafting and implementation of the Computers and Cybercrime Bill.
The Pros of the Bill
Utilisation of the Mutual Legal Assistance Act (2011)
The utilisation of this legislation should be regarded as a rare show of legislative innovation, designed to specifically remedy the lack of reciprocal legal instruments present to combat the globalisation of cybercrime and its effect in Kenya.
The concept of mutual legal assistance was best outlined in the Budapest Convention on Cybercrime (2001) , whereby, under Article 25, signatory States should afford one another mutual assistance to the widest extent possible for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence.
According to the Mutual Legal Assistance Act (2011), it is essential to note that the scope of legal assistance is particularly wide with obligations that are designed to inflict fear upon any cyber criminal’s defence attorney worth his salt.
- Identifying and locating of persons for evidential purposes,
- Examining witnesses;
- Providing, including formal production where necessary, originals or certified copies of relevant documents and records, including but not limited to government, bank, financial, corporate or business records;
- Facilitating the voluntary attendance of witnesses or potential witnesses in a requesting state;
- Facilitating the taking of evidence through video conference;
- Effecting a temporary transfer of persons in custody to appear as a witness;
- Identifying, freezing and tracing proceeds of crime;
- The recovery and disposal of assets;
- Preserving communications data;
- Interception of telecommunications and conducting covert electronic surveillance.
Central to the cybercrime prosecution agenda is the preservation of communications data in order to facilitate collection of evidence and investigations, interception of relevant telecommunications and conducting electronic surveillance which have been outlined in Section 31 of the Computer and Cybercrimes Bill.
Per Section 31 of the Mutual Legal Assistance Act (2011), the requesting State can request for the preservation of the subscriber information traffic data or any other information falling within the definition of communications data, as long as it can demonstrate the relationship which that data has towards the investigation or prosecution, to the requested State. Aptly, there exists a caveat where the Requested State can reject the request if its fulfilment can prejudice the security, international relations, or other essential public interests of Kenya.
The interception of telecommunications relevant to demonstrated investigations or prosecutions is of immense importance for the prosecution of transnational cyber crimes. In accordance with Section 27 of the Mutual Legal Assistance Act, requested States can fulfil a request for the interception and immediate transmission of telecommunications as well as the interception, recording and subsequent transmission of telecommunications.
In the realm of cybersecurity, incidence response time is fundamental as it enables information security teams to block the culprit’s access to the system, collect data regarding the means used to access the hacker and appropriately reverse-tunnel the hacker’s path in order to collect evidence and hopefully identify the hacker via the culprit computer’s IP address for litigation purposes.
Notably, the speed which interception and identification of the method and culprit occurs ultimately determines the success of a cybercrime suit in a court of law. This is because the collection of admissible evidence in the modern era has been obscured by numerous hacking ploys such as botnet technology, file-less malware and the infamous onion router used by cyber criminals to mask their identities.
As such, due to the simple inadmissibility of evidence collected against perpetrators, numerous cyber criminals go scot-free after pocketing millions.
Similarly, covert surveillance has been sanctioned in accordance with the tenets of Section 32 of the Mutual Legal Assistance Act.
Fundamentally, this clause is centrally dependent on the Requested State’s legislation. In States, where covert surveillance is permitted by the Government, cyber criminals could be spied on and sufficient evidence collected to put them behind bars.
However, the constitutional right to privacy in certain jurisdictions could be violated if this clause is improperly applied.
The differentiation between critical infrastructure and other networking systems
Through Section 10 of the Computer and Cybercrimes Bill, enhanced penalties for critical infrastructure has been incorporated into cybersecurity policy. According to the Bill, “a protected computer system” has been defined as a computer system used directly in connection with, or necessary for:
- The security, defence or international relations of Kenya;
- The existence or identification of a confidential source of information relating to the enforcement of a criminal law;
- The provision of services directly related to communications infrastructure, banking and financial services, payment and settlement systems and instruments, public utilities or public transportation, including government services delivered electronically;
- The protection of public safety including systems related to essential emergency services such as police, civil defence and medical services;
- The provision of national registration systems;
- Or such other systems as may be designated by the Cabinet Secretary in the manner or form as the Cabinet Secretary may consider appropriate.
Every offence found under the Computer and Cybercrimes Bill which occurs to protected computer systems attracts a twenty-five-year imprisonment term, twenty-five million shillings or both.
Due to the nature of data stored in critical infrastructure (therein renamed protected computer systems), the risks for Kenyan citizens is particularly immense.
Sensitive data can be used by vindictive cybercriminals to extort military information, steal finances and in certain events, affect the democratic governance structures of a People.
As such, the punitive penalties instigated against cyber criminals in Section 10 should be commended.
The inclusion of cyberstalking and cyber-bulling as an express offence:
Section 14 of the Bill has defined the crimes of cyber-stalking and cyber-bulling as express offences.
Cyber stalking and cyber-bullying have been collectively defined as an occurrence where a person who, individually or with other persons, wilfully and repeatedly 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 is likely to cause those persons’ apprehension or fear of violence to them or damage or loss on that persons’ property; or detrimentally affects that person.
The appurtenant fine for the latter offence is a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or both.
Society should pen this as another win for feminism. The impact of cyber-bulling is particularly significant among girls. Per a Report regarding cyber-violence against women and girls, published by The United Nations Broadband Commission for Digital Development Working Group on Broadband and Gender, about 73% of women and girls are abused online.
This policy should enable women to safely adopt and engage with technology, much to the benefit of our thriving ecosystem.
Confiscation and Forfeiture of Assets
Per Section 17 of the Bill, cybercrime will no longer pay. According to the Bill, a court may order the confiscation or forfeiture of monies, proceeds, properties and assets purchased or obtained by a person with proceeds derived from or in the commission of an offence therein.
Further, the court may, on conviction of a person for any offence under this Act make an order of restitution of any asset gained from the commission of the offence, in accordance with the provisions and procedures of the Proceeds of Crime and Anti-Money Laundering Act, 2009.
Restitution is particularly punitive for cyber criminals, as it is a gain-based form of recovery which can be applied by the Kenyan court of law. Restitution essentially orders the defendant to give up his/her gains to the claimant. It can be contrasted with compensation where the court orders the defendant to pay the claimant for his or her loss.
Essentially, if the Bill were in force during the occurrence and Alex Mutuku were convicted of any offence under therein, he would have to “indemnify” the Kenya Revenue Authority of the missing 4 billion shillings sourced from the cyber-heist.
Penalties for Misuse of Powers by Investigative Officers
Under Section 28(2) of the Bill is a rare piece of legislation which cautions authorised persons or police from misusing the powers accorded to their office by the Bill, the latter penalty amounts to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both.
Section 28(2) of the Bill serves as an essential check towards the arbitrary abuse of the investigatory powers of the government, thus protecting the essential constitutional rights of privacy and consumer rights.
Cons of the Bill:
Numerous violations of the principle of legal certainty:
An apt reading of the Bill reveals numerous instances whereby the principle of legal certainty has been grossly violated and could pose numerous risks to the adoption of rule of law within Kenya’s digital ecosystem.
The concept of legal certainty can be defined as a principle which holds that the law must provide those subject to it with the ability to regulate their conduct. The legal system needs to permit those subject to the law to regulate their conduct with certainty and to protect those subject to the law from arbitrary use of state power.
This is particularly evident within the prior discussed Section 14 regarding cyber stalking and cyber-bulling, wherein it has been described as a defence to a charge of an offence if the person establishes that: the conduct was pursued for the purpose of preventing or detecting crime; the conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under the enactment; or in particular circumstances, the conduct was in the public interest.
Note that the “particular” circumstances have not been defined by the Bill, creating an immense void that could lead to the violation of the constitutional right of privacy accorded to Kenyan citizens via covert surveillance as well as online harassment by the authorities.
Mandatory Breach Notification:
Emulating the impending General Data Protection Regulation in the EU as well as the Digital Privacy Law in Canada, the Kenyan digital economy could benefit immensely from ensuring that there exists mandatory notification of breach occurrences by organisations handling personal or sensitive data to a given supervisory authority.
The threshold should essentially be breaches which could lead to significant harm. In Canada’s PIPEDA (Personal Information Protection and Electronic Documents Act) ‘significant harm’ includes bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on credit records and damage to or loss of property.
In determining whether the risk threshold is met, the organisation must consider: the sensitivity of the personal data that has been exposed; the probability that the personal data has been, is being or will be misused; and any other factors that the government prescribes.
Cybercriminals thrive on the siloed efforts of numerous attacked institutions as they collaborate to come up with more innovative means to compromise security systems. Breach notification eliminates the clandestine manner through which hacks are handled and enabled synergised efforts towards the prevention of cybercriminal activity as well as their prosecution.
Under Article 35 of the Budapest Convention on Cybercrime, the Council of Europe necessitated States to designate a point of contact available on a twenty-four hour, seven-day-a-week basis, in order to ensure the provision of immediate assistance for the purpose of investigations or proceedings concerning criminal offences related to computer systems and data, or for the collection of evidence in electronic form of a criminal offence.
Such assistance should include facilitating, or, if permitted by its domestic law and practice, directly carrying out the following measures: the collection of evidence, the provision of legal information, and locating of suspects, the preservation of data and the provision of technical advice.
The latter enables expeditious incidence response, collection of evidence and location of users which ultimately leads to the conviction of cyber criminals.