Kenya wants to retain control over the prosecution of its citizens accused of cybercrime outside the country as it prepares to join an international treaty on computer and internet offences.
The 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.
Under the proposed reservation, Kenya 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 said the reservations would help align Kenya's obligations under the convention with its domestic laws and constitutional protections.
"Kenya supports the objectives and cooperative spirit of the Budapest Convention. However, to ensure that obligations under the Budapest Convention are fully harmonised with domestic laws and constitutional safeguards, it is prudent and consistent with international treaty practice for Kenya to enter specific reservations and interpretative declarations at the time of accession," Foreign and Diaspora Affairs Cabinet Secretary Musalia Mudavadi said.
"This will preserve the integrity of Kenya's legal framework, clarify the scope of Kenya's obligations and ensure that the Budapest Convention is implemented in a manner that preserves its national interests."
The Budapest Convention is the first international treaty dealing with internet and computer crime. It was adopted by the Committee of Ministers of the Council of Europe at its 109th Session on November 8, 2001.
It was opened for signature in Budapest, Hungary, on November 23, 2001, before taking 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 said the agreement is designed 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 digitisation and rising cyber threats and attacks.
"Cybercrime and cyber-attacks continue to evolve at unprecedented scale, volume and speed. The possibility of large-scale cyber-attacks is real. Such attacks may occur simultaneously across states and continents, hence the need for international collaboration and cooperation, Mr Mudavadi said.
The Cabinet Secretary said Kenya has already established laws that cover key areas addressed by the convention.
These include the Computer Misuse and Cybercrimes Act and the Data Protection Act, which deal with both substantive and procedural aspects required under the Budapest Convention.
"Accession, therefore, will reinforce and harmonise Kenya's existing legal framework with international standards without necessitating extensive legislative overhaul," Mr Mudavadi said.
He added that Kenya has a mutual legal assistance and extradition framework that supports cooperation with other countries in criminal investigations and prosecutions.
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.