Defined as the process of ‘imposing checks, direct or indirect, governmental or otherwise on the exercise of one’s right to free speech’[1], censorship is an inhibition of the right to speak one’s mind freely[2]. This right is enshrined in Article 33[3] of the Constitution and includes the freedom to seek and receive information. Read together with Article 32 and international instruments, this includes the right to express opinions without interference in a wide range of areas[4] both private and public.

As defined in our earlier post, blogging is part of web content that allows people to create their own content and interact with content from others. Censorship places limits on the ideas that can be shared as part of that content, for both negative and positive reasons which will be discussed below.

The publication of opinions on the internet has seen two common strands of censorship play out on a digital stage; autonomous censorship and legal censorship both of which are elucidated below.

Autonomous censorship[5]

This is also known as self-censorship and can done for both conscious and unconscious motives. It usually manifests when a  person shrinks their territories of expression due to personal choice or intimidation.[6] At worst, this can create a silent atmosphere of repression that has no legal or tangible remedy. Self-censorship can be part of a ripple effect of what is acceptable to a society, even to the detriment of its progression[7] due to a combination of factors mainly spurred by irrational fears.[8]

The Media Council of Kenya has commented on an increasing trend of self-censorship for various reasons including sanctions to the individual, family or their medium/platform.[9] Article 19 attributes self-censorship to a lack of  accountability for those who target anyone expressing themselves freely, on subjects that are controversial, particularly matters to do with corruption.[10]

For women in particular, self-censorship is linked to varying forms of online harassment which include sexual harassment.[11] A poll by Amnesty International about women’s experiences of abuse on social media platforms found that between 63% and 83% of women from the eight countries polled changed the way they used social media due to online harassment.[12] The sheer volume of users makes it difficult for platforms to stand in between harassers and the harassed online, leading some users to self-censor.[13] Self-censorship therefore remains a big challenge to increasing women’s participation online.

Legal censorship[14]

This is where legal institutions such as the government, police and the courts intervene to restrain expression of certain ideas. This can be prior to the act, for instance where minimum thresholds must be met before a piece of work is published, or after the fact where punishment is exacted for violation of legal limits. This also includes agreements to limitation of free speech imposed by employers as part of employment contracts.[15]

In Kenya, the freedom of expression is limited[16] in order to ensure the rights of others in a society are not violated. This does not mean that a person is not allowed to offend others with their expression but where their speech advocates hatred[17] or is discriminatory[18], the law steps in to foster a productive use of free speech.

It is important to recognize, however, that censorship can take on a repressive tinge if used to curb rightful dissent or oversteps the bounds of the legal ambit of censorship. For instance, blogger Abraham Mutai was arrested in 2015 after tweets about rampant corruption in Isiolo County. The blogger was airlifted to the police headquarters on grounds of causing ‘anxiety without evidence’. He was released on personal bond and after public pressure.[19]

Democratic societies[20] should accommodate  political dissent in a society to ensure that citizens do not live against a backdrop of threat of reprisal.[21]  Laws limiting freedom of expression should therefore maintain an environment where people can meaningfully engage with ideas and information that is of interest to them.

The latest Kenyan law limiting expression is the Computer Misuse and Cybercrimes Act. The statute imposes a penalty of up to ten years for the publication of “false” or “fictitious” information that results in “panic” or is “likely to discredit the reputation of a person[22]. Attention was drawn to certain provisions of the Act when the Bloggers association of Kenya (BAKE) filed a case in May of 2018, challenging the constitutionality of 26 sections of the Act in part due to perceived violations of the freedom of expression and privacy. The case was dismissed in its entirety in February 2020.[23]

Also in contention is the Kenya Information and Communication Amendment Bill, dubbed the ‘social media bill’ which introduces amendments to the Kenya Information and Communication Act (KICA) pertaining to the licensing of social media users, mandating that all bloggers be registered and giver the Communications Authority (CA) the authority to develop a bloggers code of conduct. More on the analysis of the bill can be found here. While codes of conduct for bloggers are not new[24], to allow the government to set the determining standard can be construed as an overreach of its ambit, leaving it to dictate matters of personal opinion, effectively leashing free expression.

Key to this discussion is the section[25] mandating that bloggers obtain a license to blog, without which they may be liable to a fine not exceeding 500,000 shillings and/or imprisonment for a term not exceeding one year. This provision could arguably foster repressive censorship by making bloggers unnecessarily beholden to the government.

Conclusion

Impositions on one’s freedom to express themselves are not always negative but where the restriction is unreasonable and unfounded, pushback becomes necessary. Due to increasing restrictive controls, particularly by governments, efforts to use social media manipulation and internet blocking have been on the rise.  As governments regulate harmful speech, they must not create cultures of fear or impose legal nooses on freedom of expression.

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[1] Sen S, ‘Right to free speech and censorship’, Journal of the Indian Law Institute, 56(2), 175.

[2] Article 33(2)(d), Constitution of Kenya (2010).

[3] Article 33, Constitution of Kenya (2010).

[4] General Comment no 34 to the ICCPR.

[5] Sen S, ‘Right to free speech and censorship’, Journal of the Indian Law Institute, 56(2), 180.

[6] https://newrepublic.com/article/140458/beware-self-censorship on 29 February 2020.

[7] https://newrepublic.com/article/140458/beware-self-censorship on 29 February 2020.

[8] https://newrepublic.com/article/140458/beware-self-censorship on 29 February 2020.

[9]https://www.mediacouncil.or.ke/en/mck/images/Observer/MEDIA%20OBSERVER%20JULY%20ISSUE%20.pdf  on 9 March 2020.

[10]https://www.article19.org/data/files/medialibrary/38167/FOR-WEB-LAUNCH-2-11-Kenya_monitoring-_violations_report_PDF.pdf on 5 March 2020.

[11] Seelhoff C, ‘A chilling effect: the oppression and silencing of women journalists and bloggers worldwide’, Off our backs inc., 37(1), 18.

[12] https://www.amnesty.org/en/latest/research/2018/03/online-violence-against-women-chapter-5/ on 4 March 2020

[13] https://www.amnesty.org/en/latest/research/2018/03/online-violence-against-women-chapter-5/ on 4 March 2020

[14] Sen S, ‘Right to free speech and censorship’, Journal of the Indian Law Institute, 56(2), 180.

[15] https://www.economist.com/leaders/2020/02/27/the-case-for-free-speech-at-work on 29 February 2020.

[16] Article 33(2), Constitution of Kenya (2010).

[17] Article 33(2)(d), Constitution of Kenya (2010).

[18] Article 33(2)(d), Constitution of Kenya (2010).

[19]http://www.monitor.co.ke/2015/01/22/blogger-abraham-mutai-arrested-and-released-for-reporting-on-corruption-in-isiolo-county/ on 27 February 2020.

[20] The Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa , https://www.refworld.org/docid/51949e234.html on 29 February 2020.

[21] https://www.coe.int/en/web/human-rights-channel/media-self-censorship on 29 February 2020.

[22] Section 22, Computer Misuse and Cybercrimes Act, 2018.

[23] https://techweez.com/2020/02/20/court-declares-computer-and-cybercrimes-law-constitutional/ on 28 February 2020.

[24] http://cyberlaw.stanford.edu/blog/2007/04/blogging-code-conduct on 29 February 2020.

[25] Section 84(1)(d)

 

 

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