Three journalists arrested over the fake nude photos of Kakamega Senator Cleophas Malala were on Friday set free without being charged.
David Onyango Ndolo, Stafford Ondego and Alex Mulwa Nzyoki were presented in court before Chief Magistrate Francis Andayi and released due to the temporarily suspended sections of the Computer Misuse and Cybercrime Act of 2018.
The prosecution stated that there was no case against the journalists due to the suspended clauses 22 and 23 on false publications which had been greatly criticised for failing to define 'fake/false news', thus raising fears that it would be used as a tool to silence journalists.
The three were arrested on Wednesday over allegations by Malala that they were used by Sports CS Rashid Achesa to switch their faces in the photos.
"On October 23, 2018 with others not before court, (they) published false information through social media. Facebook and Whatsapp platform with the intent to discredit the reputation of Hon. Cleophas Malala..” read the charge sheet.
In May this year, Justice Chacha Mwita suspended the act after a petition was filed by Bloggers Association of Kenya (BAKE) challenging the implementation of the law.
According to the bloggers, the law prevented freedom of expression of both their members and journalists.
On October 4, Judge Wilfrida Okwany disregarded the request by the government to have the law enforced.
"I find that the injury complained of has to be balanced with the legal requirement that all laws pass the constitutional validity test.
"In addition to the above consideration, the court is also bound to consider where the public interest lies and, in this case, I find that nothing can be of great public interest than the court playing its constitutional mandate of ensuring that the individual rights and freedoms are protected and that laws, especially those creating offences, conform to the law," ruled Okwany.
