The Kenyan government has asked the National Assembly to approve reservations to the Budapest Convention on Cybercrime, including one that would restrict the application of extra-territorial jurisdiction against Kenyan nationals for offences committed outside Kenya. This move aims to align Kenya's obligations under the convention with its domestic laws and constitutional protections. The proposed reservation would not apply provisions that allow extra-territorial jurisdiction over a Kenyan national for an offence committed outside the country, unless the action is provided for under Kenyan law.
Foreign and Diaspora Affairs Cabinet Secretary Musalia Mudavadi stated that the reservations would help harmonize Kenya's obligations under the convention with its domestic laws and constitutional safeguards. He emphasized that Kenya supports the objectives and cooperative spirit of the Budapest Convention but needs to enter specific reservations and interpretative declarations at the time of accession. This approach is consistent with international treaty practice and would preserve the integrity of Kenya's legal framework.
The Budapest Convention, adopted by the Committee of Ministers of the Council of Europe in 2001, is the first international treaty dealing with internet and computer crime. It was opened for signature in Budapest, Hungary, on November 23, 2001, and took effect on July 1, 2004. The convention has 76 State parties, 12 of which are from Africa. The Council of Europe invited Kenya to accede to the treaty in October 2024.
Among the offences covered by the convention are illegal access to computer systems, interference with computer systems, computer-related fraud, and child sexual abuse. Mudavadi noted that the agreement aims to bring national cybercrime laws closer together, improve investigative methods, and strengthen cooperation between countries in tackling offences committed through or involving computer systems.
Kenya's move comes against a backdrop of growing reliance on information and communication technologies, increased government digitization, and rising cyber threats and attacks. Mudavadi emphasized that cybercrime and cyber-attacks continue to evolve at unprecedented scale, volume, and speed, highlighting the need for international collaboration and cooperation.
The Cabinet Secretary noted that Kenya has already established laws that cover key areas addressed by the convention, including the Computer Misuse and Cybercrimes Act and the Data Protection Act. These laws deal with both substantive and procedural aspects required under the Budapest Convention. Accession to the convention would reinforce and harmonize Kenya's existing legal framework with international standards.
The proposed reservations would allow Kenya to participate in the international cybercrime framework while maintaining the application of its domestic laws in cases involving its citizens accused of offences committed beyond its borders. This approach would enable Kenya to balance its international obligations with its national interests and ensure that the Budapest Convention is implemented in a manner that preserves its national interests.
Key points
- Kenya seeks to retain control over the prosecution of its citizens accused of cybercrime outside the country.
- The government has asked the National Assembly to approve reservations to the Budapest Convention on Cybercrime.
- Kenya's accession to the convention would reinforce and harmonize its existing legal framework with international standards.
