Last year a woman was jailed in Embu for six months for using Sh27,140 that was accidentally sent to her M-Pesa account.
Margaret Njeri was accused of stealing the money that Richard Mbui sent to her by mistake on December 7.
Mbui asked her to return the money but she withdrew, used the cash and then switched off her phone to avoid being traced.
She was later arrested and charged.
Unable to pay the Sh40,000 fine for the offence, she was sent to prison. She was lucky. Today, she would have been fined Sh200,000 or sentenced to two years in jail for failing to return the money, according to the new cybercrime Act.
Section 34 of the Act targets those who intentionally hide or withhold electronic messages, electronic payments, credit and debit card details sent in error.
Section 36 states that a person who unlawfully destroys or aborts any electronic email or processes through which money or information is being conveyed commits an offence.
And thieves beware: Inducing any person in charge of an electronic device to deliver any electronic messages not specifically meant for someone is an offence.
Read : Think again, that WhatsApp message may send you to jail!
The law operationalised by President Uhuru Kenyatta on Wednesday has opened an avenue for the government to legally spy on your communication gadgets with the permission of the courts.
Section 53 of the Act allows the government, through a court order, to monitor your communication gadgets on a real-time basis for a period not exceeding nine months.
Once the judge is satisfied, he or she will issue the requested court order but the investigating agency cannot extend the spying unless authorised by the same court.
The same access is extended to foreign governments that may request Kenya for assistance under Part V of the Act on International Cooperation.
Kenya may use the Act alongside the Mutual Legal Assistance Act and Extradition (Contiguous and Foreign Countries) Act to request similar assistance from any other country.
A police officer will be required to obtain a search order from the court in the course of any investigations to be able to access your data.
The government simply needs to prove that the data sought can help in the investigations and that measures have been taken to protect the privacy of third parties.
The requesting agency must also explain measures to ensure that the real-time collection or recording is carried out “without the disclosure of information and data of any party not part of the investigations.” Telecommunication providers will be required to comply with the court order once it is served upon them. “The court may also require the service provider to keep confidential the order and execution of any power provided under this section,” reads Section 53( 6 ) of the Act.
If a service provider fails to comply with an order, they commit an offence and are liable on conviction to a fine not exceeding Sh10 million.
Also read : Tough times ahead as Uhuru signs Cybercrimes law
In case of an individual officer of the service provider, the fine is Sh5 million or three years in prison, or both.
Section 54 provides for the conviction of a police officer who misuses the powers to spy with the fine placed at Sh5 million or an imprisonment term of three years, or both.
The Act protects the service provider from prosecution, “unless it is established that the service provider has actual notice, actual knowledge, or wilful and malicious intent, and not merely through omission or failure to act, had thereby facilitated, aided or abetted” the use of its services to commit a crime.
Other than spying, the Act makes it an offence for Kenyans to use their computers or the Internet to spy on behalf of other countries.
Cyber espionage is a crime that attracts a fine of Sh10 million, imprisonment for 20 years, or both.
If spying for other countries causes physical injury to any person, you risk a jail term of 20 years and in the case of death, you are imprisoned for life.
The law continued to draw mixed reactions with calls on authorities not to misuse it to stifle freedom of expression. The Bloggers Association of Kenya termed it retrogressive to a country that espouses, defends and thrives in media freedom.
They singled out some provisions as unconstitutional and offensive to international standards and statutes on freedom of expression and freedom of the media.
“In many ways, this law fails to protect rights to privacy, freedom of expression and freedom of information,” the bloggers said in a statement.
The law lists as ‘protected computer systems’ those of security and defence systems, banking systems, registration of persons systems, and systems used for emergency services.
Hacking into these systems will earn the offender 20 years in prison or Sh25 million fine.
The new law will be welcomed by banks and other firms that have been losing billions of shillings annually to cyberfraud.
The Serianu annual cybercrime report released in April noted that losses from cyberfraud had increased to Sh17.7 billion in 2016 from Sh15 billion in 2015 reported by Deloitte.
Computer forgery, fraud and cyber harassment common on social media will be punished by jail terms and fines between 10 and 20 million.
The Act also empowers Kenyans to apply to court for an order compelling a person charged with offences related to cyber harassment to “refrain from engaging or attempting to engage or enlisting the help of another person to engage in.” If one contravenes such an order, they commit an offence and are liable to a fine not exceeding Sh1 million or imprisonment for a maximum of six months.
In their reaction, the bloggers association argued that the National Computer and Cybercrimes Coordination Committee is non-representative as it is solely comprised of government.
Separately, the International Center for Policy and Conflict warned against criminalising freedom of expression and scrutiny of public officials.
“The law must be applied in manner so as to strike an appropriate balance between addressing crimes and respecting fundamental human rights. Anything in contrary will be challenged in court, including the constitutionality of the law,” the lobby said in a statement.
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