Patrick Ajunga could face 2-year jail term if g*****n viral s*x video sues

Following the High Court decision on Thursday to throw out a case filed by the Kenyan bloggers’ association, which sought to have the Computer Misuse and Cyber Crime Act 2018 declared unconstitutional, the girl who was recorded on tape engaging in sexual intercourse with a male Kericho resident, can now sue for being subjected to embarrassment and distress after her nude images were circulated on social media against her will.

High Court Judge James Makau on February 20, dismissed the case filed in May 2018 by the Bloggers Association of Kenya (BAKE) that challenged the constitutionality of the Computer Misuse and Cybercrime Act.

While issuing the ruling, Justice Makau said the petition was unwarranted.

The judge further lifted sections which had earlier been suspended by the court.

The judgment was set to be delivered on January 30, 2020, but the matter was postponed to February 20, by Justice Makau.

The matter went to court after President Uhuru Kenyatta signed the bill into law on May 16, 2018, amid calls to revert it back to Parliament to ensure its provisions are constitutional and do not violate the right to media freedom and expression.

In May 2018, Justice Enoch Chacha Mwita suspended 22 sections that touched on child pornography and its penalties, publishing of false information, fraudulent use of electronic data, interference with computer systems and data, among others.

Justice Mwita said the law won’t be in force until the case is heard and determined.

Ajunga and the girl

And now that the Computer Misuse and Cyber Crime Act 2018 is lawfully in force, then Ajunga’s sexual partner, 22, has a right to implicate the suspect for sharing her nude video against her will.

The Act stipulates that one whose nude pictures or videos are shared on social media or publicly-viewed websites against his or her will, can sue the partner or ex-partner for subjecting them to distress or embarrassment.

In Ajunga’s case, if it is established that he shared the video against the girl’s will; and after the Computer Misuse and Cybercrime Act 2018 was assented to in May 2018, then the girl stands a chance of suing him for revenge porn.

Ajunga in his statement to police, said he recorded the video in 2017. Should the girl sue, and the investigating officer ascertains that Ajunga’s statement is false – and that the video was recorded post-May 2018, then it would be upon Ajunga to prove that he wasn’t the one who shared the video with a third party.

If Ajunga fails to do that, then he could stare at a possible two-year jail term.

He, however, claims the video was shared by somebody unknown to him after he lost his phone in 2017.

The Computer Misuse and Cybercrime Act 2018 made it a crime to post certain images on the Internet without consent intended to cause emotional distress commonly known as ‘revenge porn’.

Revenge porn refers to the sharing of private, sexual materials, either photos or videos, of another person without their consent and with the purpose of causing embarrassment or distress.

The images are sometimes accompanied by personal information about the subject, including their full name, address and links to their social media profiles.

Two-year jail term

The Act under Section 37, which created the offence, states: “A person who transfers, publishes, or disseminates, including making a digital depiction available for distribution or downloading through a telecommunications network or through any other means of transferring data to a computer, the intimate or obscene image of another person commits an offence and is liable, on conviction to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both.”

The offence applies both online and offline and to images which are shared electronically or in a more traditional way. This includes the uploading of images on the internet, sharing by text and e-mail, or showing someone a physical or electronic image.

Sexual material not only covers images that show the genitals but also anything that a reasonable person would consider to be sexual. That includes a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way.