Hashtags will not release our bloggers, knowledge of the law will!


‘Freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth’ Justice Louis Brandeis in Whitney v California (1927)

Free speech has previously been defined as the ‘right to defiantly, robustly and irreverently speak one’s mind just because it is one’s mind.’ It is one of the fundamental characteristics of a functional democracy. In the internet age, free speech translates to internet freedom, ability to put down one’s thoughts freely on the internet systems in order to pass information to the greatest number of people possible, without interference.
Well, trickling down to Kenya’s democratic scene, it is safe to conclude that ours is a partial democracy- fundamental rights such as the freedom of expression are continuously curtailed through a myriad of oppressive laws; and while it is correct to say that bloggers and social media opinion makers should protect this right, it is also true that ignorance of the law is not a defence and that hash tags will not release our favorite bloggers from prison- knowledge of the law will!
This post serves to create awareness on internet related offences that any social media user should be wary of.

But first, your rights! Article 33 of the Constitution of Kenya provides that everyone has the freedom of expression to seek, receive or impart information or ideas. This however does not extend to: propaganda for war, incitement to violence, hate speech, advocacy of hatred based on discrimination or constituting ethnic incitement, vilification of others or incitement to commit harm.
A very important proviso in Article 33(3) reads:

‘In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others’

Such rights include the right to privacy and human dignity in Articles 31 and 28 of the Constitution respectively. As regards reputation, remember that your right ends where my feelings begin.
While there are advocates for internet freedom, so are there advocates for control and filtration of the internet; the legislature has enacted a myriad of laws which further limit the freedom of expression. Constitutionally, the limits under such laws should only go as far as the limitations provided for in Article 33. These laws include:
• You shall not stir ethnic hatred on the internet.
Section 13 of the National Cohesion and Integration Act 2008 outlaws hate speech- the use/publishing/distribution of threatening, abusive or insulting words or behaviour, or display of any written material if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.
*It doesn’t matter whether one had intention to stir up ethnic hatred.
Several internet users have been arrested on account of this section including Robert Alai and renowned political analyst, Mutahi Ngunyi.
You shall not post any words with a subversive intention.
Section 77 of the Penal Code defines subversion to include: supporting, propagating, or advocating any act or thing prejudicial to public order, the security of Kenya or the administration of justice; incitement to violence and or other disorder or crime, or counseling defiance of or disobedience to the law or lawful authority; supporting or intending to support persons who have acted in a manner prejudicial to public order or disobedience to the law or public order; indicating support, connection or association or affiliation with any unlawful society, other expressly or by implication; words intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya; acts intended to bring into hatred or contempt or to excite disaffection against any public officer, or any class of public officers, in the execution of their duties.
Under Section 96 of the Penal Code, you shall not publish (online or otherwise) any words that may lead to breach of peace or incitement to violence.
You shall not undermine the authority of a public officer– section 132 of the Penal Code.
Readers must surely remember when Robert Alai was accused of insulting the presidency- this is what this section talks about.
You shall not publish any false statement, rumour or report likely to cause fear or alarm to the public- section 66 of the Penal Code.
Beware of that rumour/unverified hot gossip/unsubstantiated reports et al that you want to post or tweet about. Waime Mburu was charged with this section. It is however a defence to show that measures to verify such information were taken.
You shall not publish obscene material.
This is material that is lascivious in nature and likely to corrupt the persons who access the material- Section 84D of the Kenya Information and Communication Act (KICA).
You shall not write any words with intent to wound religious feelings- Section 138 of the Penal Code.
You shall not write any defamatory material– Section 194, 197 of the Penal Code.
Defamatory material is that which is likely to injure a person’s reputation by exposing them to hatred, contempt, ridicule, or likely to damage their profession or trade. Unless it is TRUE or constitutes a fair comment.
You shall not misuse a licensed telecommunication system such as Face book or twitter (emphasis mine) Section 29, KICA to send messages that:
– Are grossly offensive or of an indecent character.
– Are false for the purpose of causing annoyance, inconvenience or needless anxiety to another person.
This last section constitutes the latest affront on free speech. Prior to the development of internet as a medium for information exchange, this section was widely associated with the offence of sending abusive text messages. It is now being used to curtail freedom of expression- so many bloggers have been charged under this section including Robert Alai, Eddy Reuben Illah, Cyprian Nyakundi, Geofrey Andare, Abraham Mutai, Adika Adeya, Elijah Kinyanjui and most recently, Yassin Juma.
While such persons are in most times providing insight to the public, say on corruption, political events, terrorist activities or bringing to light the conduct of public officers, they have been continuously gagged and threatened by the government. At this juncture, the words of Justice Louis Brandeis are resonant:

‘..order cannot be secured merely through fear of punishment for its infraction; it is hazardous to discourage thought, hope and imagination; fear breeds repression; repression breeds hate; hate menaces stable government; the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies..’ in Whitney v California (1927)

When all has been said, the law remains the law, and hash tags will not free our bloggers. We ought to: know the limits of our rights; know what the law provides in terms of offences and possible defences and challenge unconstitutional provisions in court. Most importantly, soldier on and get a good lawyer!

  1. princelySid
    Some of these laws seem idiotic and other violations of the constitution. What would the process of having them repelled? Direct to the supreme court? Meanwhile others are extremely open to interpretation, I shudder to think how these may be used in the coming election year.
    • Jacquelene Mwangi
      Jacquelene Mwangi
      The right procedure is to petition the High Court as it has jurisdiction to hear questions as to whether any law is inconsistent with the Constitution. I agree with you that some of these sections are extremely open to interpretation and can be used to suit different circumstances. Our only weapon is the Constitution- essentially it should be the determinant of what is or is not an abuse of the freedom of expression under each circumstance. The case against the infamous Section 29 of KICA is ongoing- i will keep readers posted on what transpires. Thanks!
      • princelySid
        It would be interesting to see your opinion on why each of these sections you've mentioned could be a violation of the constitution or subject to interpretation. I've written opinions on laws but I'm not a lawyer so it would be interesting to see it from one
  2. OJD
    Please update the blog because Justice Mumbi Ngugi in Andare v AG [2016] eKLR declared the improper use law in section 29 of KICA unconstitutional. http://kenyalaw.org/caselaw/cases/view/121033/. Another petition against is pending on the constitutionality of Section 196 and 197 on the offence of criminal libe inMarindany v DPP Petition 312 of 2015.
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