Prominent lawyer Danstan Omari has criticized a recent court ruling that saw website developer and activist Rose Njeri discharged of cybercrime charges.
Omari, speaking days after the decision by Milimani Magistrate Geoffrey Onsarigo, argued that the magistrate misapplied the law and overstepped his jurisdiction.
Njeri had been charged under Section 16 of the Computer Misuse and Cybercrimes Act. However, Magistrate Onsarigo ruled that the charges failed to disclose any offence and discharged her under Section 89(5) of the Criminal Procedure Code.
In a detailed critique, Omari said, “I don’t agree with the ruling because the magistrate relied on repealed provisions of the Kenya Information and Communications Act, which were declared unconstitutional. However, Section 16 of the Cybercrimes Act remains valid and has not been declared illegal by any court.”
He emphasized that only the High Court has the power to declare a law unconstitutional. “The magistrate cannot purport to strike out a law passed by Parliament unless such a move has been sanctioned by the High Court. Until that happens, Section 16 is enforceable,” Omari said.
He further stated that the Director of Public Prosecutions (DPP) will challenge the decision in the High Court. “The DPP doesn’t make law. He prosecutes based on existing statutes. This ruling undermines that mandate,” Omari added.
While acknowledging the high-profile lawyers involved in Njeri’s defense—including LSK President, a former Chief Justice, and Kalonzo Musyoka—Omari maintained that legal seniority does not necessarily equate to correctness in law. “Their arguments carried the day, but I respectfully disagree,” he said.
The upcoming High Court challenge is expected to test the constitutionality and enforceability of cybercrime provisions that continue to shape digital freedoms in Kenya.
