The State wants four filmmakers imprisoned up to 10 years or fined Sh20 million each for the offences of publishing false information and cyber harassment.
This, even as a search warrant confirmed that the police had linked them to a documentary titled “Blood Parliament ” aired recently by the British Broadcasting Corporation (BBC).
However, the British broadcaster last week said the four filmmakers were not involved in the documentary.
According to papers filed in court by the Directorate of Criminal Investigations (DCI), the State intends to charge the four filmmakers with at least two offences under the Computer Misuse and Cybercrime Act, 2018.
Christopher Wamae Wambugu, Markdenver Karubiu Muchira, Brian Adagala and Nicholas Wambugu Gichuki were arrested last week and released on police bond pending arraignment in court.
The search warrant issued to police by court reveals that the investigators were looking for evidence from the houses of the defendants connecting them with the BBC documentary.
Arrested filmmakers Nicholas Gichuki, Brian Adagala being held at Pangani police station, lawyer Ian Mutiso says; MarkDenver Karubiu and Chris Wamae at Muthaiga station.
Photo credit: Pool | Nation
In the application filed at the chief magistrate court in Milimani Nairobi, DCI officer Chief Inspector Nickson Kinyua indicated that circumstances of the alleged offences relate to online content published on Youtube channels BBC Africa, BBC News Swahili and www.bbc.com .
He said DCI commenced investigations following allegations of violation of the various cybercrime laws as per the Computer Misuse and Cybercrime Act No.5 of 2018 “as orchestrated by the four suspects online”. He indicated that content published in the Youtube channels and social media was harmful.
“Preliminary investigations into the allegations is indicative that the suspects have conspired with the users of the YouTube Channel Accounts dubbed: @BBCNewsSwahili and @BBCAfrica and website/blog/domain Account dubbed: bbc.com respectively. They were used to orchestrate the stated offences online to the victims without any lawful excuse, for a while now, through the defamatory posts/publications,” said Inspector Kinyua in the application.
The officer said the defendants pose a risk of inciting and causing tension among the Kenyan citizens, which could ultimately lead to a breach of peace.
In addition, he said they pose a risk of destroying the reputation of independent constitutional offices.
He stated that the published content was detrimental to the Constitutional offices and there is fear that the Youtube channels and social media accounts will continue to post “detrimental content”.
Without specifying the said offices, the investigator said the institutions suffered unwarranted reputational damage, “as a result of the inexcusable acts by the respondent, which are likely to tarnish their integrity and image, as well as continue to subject them to irreparable damages and pose a security risk”.
The investigator indicated that criminal charges likely to be preferred against the filmmakers are under section 23 and 27 of the Act.
Section 27 on Cyber harassment says a person who commits the offence is liable, on conviction, to a fine not exceeding Sh20 million or to imprisonment for a term not exceeding ten years, or to both.
In Section 23 on publication of false information says “a person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence and shall on conviction, be liable to a fine not exceeding Sh5 million or to imprisonment for a term not exceeding ten years, or to both”.
According to Inspector Kinyua, the State through the DCI believes that the user of the suspicious YouTube Channel Accounts and website/blog/domain Accounts conspired with the four filmmakers and “the ones perpetuating the malicious publications and posts online”.
The Directorate of Criminal Investigations (DCI) Headquarters along Kiambu Road.
Photo credit: File | Nation Media Group
“With such detrimental contents depicting persons purporting to be advocating for justice without lawful excuse, while actually endangering public peace and safety, necessitated the DCI as per our mandate and in the course of their expedited investigations, to apprehend the suspects. Also confiscate the electronic communication gadgets/items of evidential value, as a deterrence of the said offences and submit them for digital forensic analysis,” said Inspector Kinyua.
At the same time, the filmmakers want the High Court to grant them anticipatory bail preventing police from arresting them. They complained of harassment, intimidation and oppression by police.
“The applicants are in constant apprehension and fear, informed by the abrasive nature of policing in the current climate and arrests in the country, and themselves being the subject to an illegal arrest and an illegal seizure already,” their lawyer Ian Mutiso said.
He stated that since their arrest and release last week, the four have no clue as to the probable cause for the arrest and detention despite honoring summons to appear at the Directorate of Criminal Investigations. They have sued the Inspector-General of Police, Directorate of Criminal Investigations and the chief detective Mohamed Amin.
“The Respondents have already demonstrated their malicious intent and clear disregard of the rule of law by abusing the due process as evidenced by the electronic evidence provided under the certificate of electronic evidence which clearly show that the Respondents herein did not have justifiable cause and that their actions were meant to cow the Applicants to consent to allegations of false publication,” said the lawyer. The application is pending determination.
