That the two-thirds gender rule would not be met in the National Computer and Cybercrimes Co-ordination Committee created under the Act
The challenge was premature as the Committee is yet to be constituted.
Offences of false publication, child pornography, cyber harassment, cybersquatting and wrongful distribution of obscene or intimate images were a limitation of freedom of expression
Freedom of expression may be validly limited in the public interest, to preserve rights/reputations of others and in accordance with the Constitution. In this case it was and also validly limited in creating the offences (of cyber harassment, squatting and wrongful distribution of intimate images).
Section 24 criminalises child pornography but omits the word ‘child’. The provision also used subjective terms such as ‘erotic’, ‘lewd’, or ‘designed to arouse sexual interest’ that had not been defined
The court took the contextual view that pornography as defined is focused on criminalisation of child pornography as stated in the marginal notes. The definition of pornography as such, needed not be definite as the matter is subjective.
Absence of mens rea in some of the offences e.g unauthorised interference was contrary to the Constitution as it could result in prosecution of innocent conduct
The nature of the offences were computer integrity crimes and the mens rea could be gleaned from the wording of the provisions. Use of the words ‘intentional’, ‘unlawful’, ‘willful’ all connote mens rea.
Granting of powers to obtain search warrants, make preservation orders and intercept information to the police were an improper limitation of the Right to Privacy
The powers were not unchecked and contained safeguards. Further, nature of cyber offences justified expanding the tools available to officers.
Amendment of the Bill during the Committee of the Whole (after it had already been subjected to public participation) denied members of the public opportunity to give input on the new issues
The Petitioner read the Standing Order selectively and failed to identify any amendments after the fact that expanded the scope of the Bill. The cou-rt deferred to Parliament to regulate its own internal affairs citing the principle of separation of powers.
On 16th May 2018, the
President of Kenya assented to the Computer
Misuse and Cybercrimes Act
(‘the Act’). Its objective is to provide for offences relating to computer
systems, enabling among other things, prompt detection and prosecution of
computer and cybercrimes. The Act among other things criminalises fake news as
well as publication of false information. Shortly after its enactment, the
Bloggers Association of Kenya (BAKE), challenged its constitutionality before the High Court of Kenya,
resulting in the suspension of 26 sections pending the hearing and
determination of the suit. The grounds of the petition was the limitation of
various fundamental freedoms by provisions of the Act. On 20th
February 2020, Justice Makau gave the final judgment that upheld, in entirety, the
constitutionality of the Act. In this blog post, we discuss the highlights of
Like many of her African counterparts, Kenya faces unique
challenges and opportunities in battling the Coronavirus. Due to high
unemployment, many people survive on income from casual and informal
employment. Such income is unpredictable, and many people in this situation
have no significant savings or other buffers against periods when work is
scarce. It may therefore not be practical to put major cities and towns on
complete lockdown without inviting potentially unmanageable social problems.
Indeed, it has so far proven difficult to close open air markets or stop (the
privately owned) public service vehicles from operating. To highlight these
challenges, Journalist James Smart used social media to show the
difficult balance that is the life of informal traders who now have to stretch
their meagre earnings to cover their daily needs, after the middle class to
whom they supply their labour retreated to social distancing.
The reality of rural urban migration is that many who come
to Nairobi and other town centres in search of work never really settle in the
towns. Their souls are rooted in their upcountry homes, as Joe Mopero’s classic
hit Naona heri nirudi nyumbani, kwa baba na mama nikawasaidie (“I’ve
decided to go back to my father’s and mother’s house, to help”)reminds
us. At the slightest sight of insecurity, such as the lack of income brought
about by Kenya’s partial lockdown, many city dwellers will travel back home to
wait it out. This, of course, presents the greatest means of spreading the
Coronavirus throughout the country, and government officials have been begging
people to resist from taking that trip to the countryside.
judgement in the case of Nubian Rights Forum & 2
others v Attorney General & 9 others (Huduma Namba case), the
Ministry of Interior and Coordination of National Government released the draft
Registration of Persons (NIIMS) regulations. The draft Regulation intends to
operationalize Section 9A of the Registration of Persons Act that establishes
the National Integrated Information Management System (NIIMS). The court
ordered that the government is at liberty to proceed with the implementation of
NIIMS but on the condition that an appropriate comprehensive legal framework is
gives a brief overview of the draft regulations and comments on further issues
that the regulations should consider in view of the Huduma Namba Judgement.
Comment on the Draft NIIMS
of the draft regulation deals with definition of terms and its scope of
application. Whereas the part gives a distinction between huduma card and huduma namba,
as well as between functional and foundational data, it fails to define several
uses “agency” but fail to specify whether this refers only to public agencies.
It is also not clear if the regulations also apply to private agencies carrying
out authentication using Huduma Namba.
The term “biographic data” also needs to be defined so as to specify what kind
of data falls under this category, especially since the processing of data may
infringe on privacy. Hence the need t have clarity on the exact data types that
may be collected. The regulations should also elaborate on what “multipurpose”
means so as to provide a clear limit on the purposes for use of Huduma Namba.
The Government of Kenya through the Ministry of Information Technology recently published draft regulations, the Data Protection (Civil Registrations) Regulations 2020 and called for a public participation hearing on 27th February 2020 at KICC, welcoming oral submissions and comments to the draft regulations.
The regulations are divided into six parts covering respectively; Preliminary, Data Protection Principles, Rights of the data subject, Obligations of the civil registration entity, Security Safeguards, and Miscellaneous provisions.
CIPIT took part in the public hearing sessions and took note of debates arising from the process as discussed below. Data Protection Principles
Ensuring that legal frameworks on data protection meet the objective of protecting the collection, processing, and storage of personal data requires that the frameworks are structured to adhere to the principles of data protection. The regulation has focused on two principles – consent and security safeguards, inadequately addressing other core principles on purpose limitation, storage limitation, adequacy, and data transfer.
In order to avoid abuse, there is need for clarity on all the principles. The principles give effect to the rights of a data subject. Abiding by these principles not only guarantees the right to privacy but also legally justifies the processing of personal data in a manner that respects the rule of law.
Processing of Personal Data relating to children.
Children are less aware of the risk involved in the processing of their personal data and therefore merit specific protection when their data is collected and used. Consideration must be given to clarity on privacy notices, reliance on direct consent of a child, the competence of the child in understanding what they are agreeing to, identification of risks and consequences of the processing and the implementation of age-appropriate safeguards.
Typically, corporations more than
individual inventors, are known to spearhead inventions and make use of the
patent system as a tool of protection. In fact, statistics on patent
applications and grants indicate that most patenting activity is done by companies
more than individuals.
Nevertheless, the situation is not uniform throughout the world. According to a
study interrogating whether patents and utility models encourage innovation in
Kenya, it showed that the number of individual inventors applying and receiving
patents is more than corporations.
However, despite more individuals applying and receiving patents, the number of
patents is still low and there is a high rate of abandonment of patents. The study reveals that more individuals were
granted utility model certificates than corporations. Additionally, it reveals
that despite corporations having fewer patents in Kenya, there is still
inventive work happening in the companies.
To anyone who has interacted with
news of innovation levels in Kenya, this might come as a surprise since Kenya
has been and continues to be hailed as a hub of innovation. Infact, the Global
Innovation Index (GII), continuously ranks Kenya among the highest of the
African countries. This
is despite the mentioned low number of patents. However, this can be attributed
to the fact that the level of innovation in a country is not measured by the
level of patenting activity only. The
2019 GII indicated that there are other indicators of innovation in a country
such as the amount of venture capital deals in a country, level of high
technology imports, mobile app downloads and political and operational
stability among other indicators.
According to GII, patent applications is just one of the sub- indicators under
the sub-pillar of knowledge creation which is under the larger pillar of
“knowledge and technology outputs”. The
GII uses uniform indicators to rank all the countries. For example, under the
sub-pillar of knowledge creation where patent applications fall, it shows that
Kenya ranks as number 72 out of the 130 countries.
Kenya introduced digital ID vide an amendment to the Registration of Persons Act in December 2018. The amendment introduced the National Integrated Identity Management System (NIIMS) that centralises all government identity systems, popularly known as Huduma Namba (Swahili for service number). CIPIT has discussed the Huduma Namba in previous blog posts. In Janiary 2019, three petitions opposing NIIMS were lodged. Interim orders that partially permitted the NIIMS project were issued in April. The petitions were heard in September of 2019. Judgement was delivered on the 30thof January 2020.
Grounds for the petition
The petitions were grounded on several constitutional issues among them: that NIIMS perpetuated discrimination against groups like Nubians (the first petititoner) who undergo different administrative processes when seeking national identity documents. As the process involves security vetting, groups such Nubians would therefore be profiled during the vetting. Another ground was the procedure used to enact the Bill as it did not go through the Senate. Petitioners also argued that the Bill was unconstitutional as the omnibus style (collation of several bills into one) prevented the public from adequately engaging with the Bill.Finally, petitioners also protested that the amendment was a violation of the right to privacy, due to the intrusive nature of data that was to be collected.
Summary of issues
The court determined that there were three main issues for determination: the legislative procedure, the right to privacy and right to equality and non-discrimination.
Whether there was Public Participation
The petitioners argued that the public was generally unaware of the Bill and the time provided for public participation was very limited, the notice in the newspaper having only provided for 7 days. The respondents countered that there had been a sufficient amount of time provided to the public to provide their feedback on the amendments made to the Bill from the time it was gazetted.
At the dawn of the new decade, perhaps the
most anticipated technological breakthrough is not the progress of autonomous
vehicles or the onset of smart cities but rather the evolutionary technology
underpinning them. This is the Fifth Generation Mobile Network Technology commonly
known as 5G.
Based on early signs, 5G promises a technological
paradigm shift not only in the field of telecommunications but also in the
areas of healthcare, manufacturing, transport and commerce.
This is because this generation of cellular broadband is designed to increase
speed and substantially improve lower latency which can consequently improve
the performance of real time applications.
The substantial jump in speed will support a number of data intensive tasks
such as streaming heavy video content and instantaneous video calls amongst
others. A practical example of the significant jump in speed offered by 5G is
evident in tests showing that an ordinary 5GB film in High Definition can be
downloaded, in ideal conditions, in about 8 seconds.
Further, with improved flexibility of
wireless services, 5G is poised to unleash the full potential of the ‘Internet of Things’ i.e. the system by
which a variety of everyday machines connected to the web can send and receive
data. This presents several benefits including the development of autonomous
vehicles, augmented AI and remote medical care. In this way, the network is
poised to provide an underlying fabric of unprecedented connectivity to a wide
array of industries thereby transforming economic and business policies
globally. At the local level, 5G rollout is expected to improve the lives of
ordinary Kenyans by enhancing mobile communication facilities and improving
digital literacy especially in rural areas which are predominantly under 2/3G
(This post forms part one of a new series on blogging and considerations that entrant bloggers face.)
Blogs have been recognised as one of
the most prominent web 2.0 technologies that allow creation of user generated
2.0 also known as “social computing” has been defined as “internet tools that
foster collaboration and interaction”. It is the web version that
allows people to create their content and allow them to interact with content
from others. One
of the most powerful features of web 2.0 is that it “empowers and generates
communities with similar interests”. Web 2.0 was a transition
from the web that only programmers could contribute, to a web that allows
anyone to participate online by publishing and sharing content. A
shift from “uni-directional mass media to
participatory media where viewers and readers of media become the creators of
The history of blogging can be
traced back to the advent of the web. The web was invented and
implemented in 1990. By
this time, the internet was already operational and was mainly used by
scientists, programmers and people interested in new forms of communication. In
1993, the web was opened to the general public with Mosaic, the web browser that popularised
the world wide web. As
a result of its simplicity and reliability, it facilitated a rise in personal
home pages where people posted about their personal matters akin to some modern
However, these personal websites were not always referred to as “blogs”. Some
were referred to as online personal diaries. The word “blog” came from the word “weblog” which
referred to a “log of visitors that a person who administers a web server can
However, John Barger, creator of the site “Robot
Wisdom” suggested an alternative purpose of the word. This alternative purpose
was reflected in the title of his site “Robot
Wisdom: A Weblog by John Barger”. His
site consisted of a list of links to other sites with no commentary. As
others created sites with some commentary, the term “weblogs” applied to such
posts. It was Peter Merholz that shortened the term “weblog” to “blog” in 1999.
fact is that there is a market for counterfeit products that has contributed to
the expansion of this outlawed industry. More often than not, consumers are not
able to access legitimate brands because on one hand, they are misled by
counterfeiters and on the other hand, legitimate brands are outside their means
hence consumers settle for versions of the brands they desire. In
fact, the market for counterfeit products is vast and readily accessible,
occasioning unfair competition.
During past Jamhuri
Day Celebrations, the Head of State issued an executive order to investigate intellectual
property (IP) infringement and destroy counterfeits on sight. He reiterated
that counterfeits are a major impediment to the growth of the manufacturing
sector, which is the first pillar among the ‘Big Four’ Agenda. This kind of
political goodwill reinforces the legislative commitment in addressing intellectual
property rights (IPRs) infringement.
the explosion of technology, counterfeiters are benefiting from the digital
space. Whilst, it is a logistical nightmare for law enforcement and, for brand
owners seeking to protect and enforce their IP, reputation and revenue streams.
On 20th November
2019, Justice John M. Mativo of the High Court’s Judicial Review Division,
delivered a judgment in Republic V.
Anti-Counterfeit Agency Ex-Parte Caroline Mangala T/A Hair Works
The sum effect of the judgment is that the common law right of passing off is a
form of infringement of IPRs in goods and services thath amounts to
counterfeiting under the Anti-Counterfeit Act.
Applicant, Caroline Mangala, a Kenyan business lady operating a beauty shop
called Hair Works Saloon (sic), sought Judicial Review Orders against the
Anti-Counterfeit Authority, whose officers seized beauty products by the brand Makari De Suisse on the basis that they
were counterfeit. The crux of her
application was that the seizure was unfair, illegal and tainted by bad faith
considering that she had submitted
samples of the same products to the Kenya Bureau of Standards (KEBS) to
ascertain whether they were counterfeit or not, to which KEBS confirmed the product
being of acceptable standard. The application occasioned chance for the court to
address intellectual property issues as below.
IP Considerations in Anti-Counterfeit Regulations
JO Global Venture Limited allegedly agents of M/s
Victoria Albi Incorporated and alleged owners of the trademark Makari De
Suisse filed a complaint with the Anti-Counterfeit
Authority (ACA) alleging trademark
infringement. As a general rule, for one to pursue complaints in IP
Regulations, registration is a key starting point on issues of locus.
In fact, Section 5 of the Trade Marks’ Act precludes
parties from seeking redress for a trademark violation, unless that mark is
Applicant argued that the Complainant was not a registered owner of the mark Makari De Suisse in Kenya under the
provisions of the Trade Marks’ Act, even though an application had been lodged
and still pending examination at the Registrar of Trade Marks. The Applicant’s
main argument was that the Complainant did not have a duly registered trade
mark in existence capable of laying a basis to lodge a complaint for
Among other legal issues, the Court considered the correlation
between counterfeiting and standardization of goods. Though standardization of
products is a mandate of KEBS, it does not oust the mandate of ACA in curbing
counterfeiting. The Court agreed that there are times when goods will be
substandard but not counterfeit, or counterfeit but not substandard or both
counterfeit and substandard. 
PAO & 2 Others v Attorney General
the Court held that the test as to whether goods are counterfeit lies in Section
2 of the Anti-Counterfeit Act.
Therefore, even in cases where products have passed the required
standards after laboratory tests by KEBS, the ACA may still pursue issues of
counterfeit, especially to ensure that there is no IP violation, whether under
the Trade Marks’ Act or in common law.
of IPR Ownership
Section 26(5) of the
Anti-Counterfeit Act, provides that where the subsistence of IPRs in respect of suspected
counterfeit goods or the title or interest in IPRs is in issue, the complainant
shall be presumed to be the owner of the copyright or the related right, until
the contrary is proved.
Therefore, an interpretation
of the foregoing provision reveals that to file a complaint at ACA on the basis
of IP rights violation, one does not need to prove registration of the same mark.
This is unlike the requirement to prove registration under Section 5 of the
This means that the ACA in
dealing with counterfeiting also enforces protection of IPRs, which is an
overlap to the provisions under the Trade Marks’ Act. Essentially, counterfeiting includes making
any goods that are imitations of protected goods without the authority of the
owner of the IPR.
of unregistered IPRs
As a rule of thumb, there is
need for every IP owner to take necessary steps to ensure that their rights are
legally enforceable. Registration offers one way of proving the existence and
ownership of the rights at any one given time. Failure to register IPRs often leaves
room for infringement and consequently, unnecessary and lengthy litigation.
That notwithstanding, there is a doctrine of “common
law Trademarks’’, as held in Capital
Estate and General Agencies (Pty) Ltd & others v Holiday Inns Inc. &
others.This doctrine is to the effect that, the fact that in a particular case
there is no protection by way of patent, copyright or registered design, does
not license a trader to carry on his business in unfair competition with rivals.
Therefore, though subject to several disputes and arguments, one cannot
purport to unfairly utilize another’s intellectual property rights on the basis
that they have not been registered.
The common law tort of passing off can be used to
enforce unregistered trademark
rights. One only needs to satisfy the “Classic Trinity-reputation and goodwill,
misrepresentation, and damages“ as established in Reckitt & Colman Ltd v Borden Inc. (Jif Lemon case).
The effect of the recent judgment
is that there is now a mixed approach in enforcement of IPRs. A quick glance at
the mood set in the judgment reveals the possibility of multiagency regulation
and coordination in enforcement of IPRs. The ACA and KIPI can collaborate to
ensure that no one benefits from other people’s IPRs unfairly.
of IPRs is not only guaranteed by mainstream Intellectual Property Regulation Instruments
like the Trade Marks’ Act but also the Anti- Counterfeit laws in Kenya as
interpreted by Justice Mativo. The Anti-Counterfeit Authority
has a mandate to ensure protection of IPRs. The mandate is exercised whether
the IPR is registered or not owing to the presumption of ownership by the
complainant. Once the presumption is questioned, there is an avenue for separate
proceedings, either before the Courts or before the Registrar of Trade Marks’
to make a determination as to ownership.
*Ms Perpetua Mwangi is the Head of the Intellectual Property Division at Simba and Simba Advocates.
It’s Africa podcast
day and CIPIT would like to shed a spotlight on its podcast, launched late
last year, The Friendly Troll.
First things first,
why a troll? Why is it friendly? Why another podcast?
The Global South is often seen as
an incubator for the Global North to identify and implement their solutions to
our perceived problems, but not often as a case study for what the Global North
can learn from us. In this vein, a podcast is born. Exploring tech dynamics in
the Global South in the context of larger tech developments around the globe.
Our episodes focus on tech problems
and tech solutions in an ever growing, ever dynamic digital world viewed through
a prism of the Global South.
Our current episodes
Mobile Money Reversal, what can the West Learn
Mobile money has solved access
issues in Africa that the west is only seemingly beginning to catch up to. This
episode looks at these pitfalls and asks about how to address the issue of
mobile money reversal. This is an issue that the West is still grappling with
which has been resolved for a while in Africa, though not without its own
pitfalls. For instance, while it is possible to reverse erroneous transactions,
this is limited to the money still being in the recipients e-wallet, in the
absence of which, action
outside the mobile money platform will have to be taken.
Digital ID Double edged Sword for the Global South
The recent Huduma number
controversy has asked important questions about digital ID, its use and benefits
and, the need for it to be properly regulated in order to avoid data
Digital ID has been linked to development, being part of SDG 16,
targeting ‘legal identity for all, including birth registration’ by 2030. Building
a digital identity ecosystem, particularly for developing countries will rely
on private sector participants often. Control over digital ID will have to
ensure that the data of individuals isn’t exploited.
In Kenya’s case this requires focus on two key areas:
regulatory framework – the Data Protection Act was passed in 2019 and recently, a High
Court judgement emphasized that the Huduma number
exercise must be undertaken within a proper regulatory framework calling for
the legislators to take up the role of defining the framework within which digital
identity is protected.
infrastructure – digital ID kits may need to be outsourced and this creates a
need for the tech infrastructure to be as homegrown as possible and where the
involvement of private sector participants or foreign governments is concerned,
a stricter regulatory framework to ensure that at all times, our data is in our
Big Tech in the Global South
This episode was a foray into the emerging superpowers
in tech, the US and China, and the effect that they have on developing
countries. The US remains the dominant technological
force on the global stage due to multiple
factors of political, economic and military influence and a pervasive identity
in the digital space. With that said, China is fast on its heels investing
greater amounts into the Global South as part of its Belt and Road initiative
which includes a digital Belt and Road.
A dominant part of China’s influence
extends to the Global South, in both private sector projects as well as large
scale government collaboration. This carries questions of data independence and
the effect that the extended influence can have on cybersurveillance efforts.
Tech Giants and Competition Law in the Global South
Competition law (or antitrust
as it’s known in the US) has a lot to say about how smaller tech companies can
take on the giants. Tracing the origins of antitrust law, the episode looks at
the telecommunication corporations in Kenya dominating the ISP space as well
and what that might mean for smaller providers. Kenyan law, which is modelled
after European competition law, predicates antitrust actions on dominance in
the market which may allow mischief on the part of smaller ISPs.
The episode also takes a look
into the ways that FACEBOOK is attempting to keep a hold on its market share,
Free Basics to be specific and the lessons that Kenya can learn on how to be
more wary about who they allow to access their data.