Introduction

In the digital age, access to the internet has become a fundamental aspect of daily life, significantly influencing how individuals communicate, access information, and engage in social, economic, and political activities.¹ Recognizing this, various international bodies and national constitutions have progressively viewed internet access as a fundamental legal right.² However, internet shutdowns, often justified by governments on grounds of national security or public order, have been increasingly seen as violations of human rights.³ This article looks into the legal frameworks surrounding internet shutdowns, the theories of digital authoritarianism, and the specific case of Kenya’s #RejectFinanceBill2024 protests to highlight the broader implications of such actions on freedom of expression and democratic processes.

Legal Frameworks on Internet Access and Freedom of Expression

International legal frameworks like the Universal Declaration of Human Rights (UDHR) and the International Convention on Civil and Political Rights (ICCPR) emphasise the importance of freedom of expression and the right to access information. Article 19 of the UDHR states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”⁴ Similarly, Article 19 of the ICCPR protects the right to freedom of expression, while Article 21 guarantees the right to peaceful assembly.⁵

However, both frameworks recognize limitations on these rights, allowing restrictions under specific circumstances such as “respect for the rights or reputations of others,” “protection of national security,” or “public order.” Despite these provisions, the overarching concern remains that freedom of expression and access to information are vital to democratic societies.

In Kenya, the Constitution enshrines fundamental rights related to freedom of expression and access to information. Article 33 guarantees freedom of expression, which includes the freedom to seek, receive, or impart information or ideas.⁶ Articles 35 and 37 of the Constitution safeguard access to information, and the right to protest respectively, which are key rights in any democratic society.⁷ It is also important to take into account certain provisions of the Computer Misuse and Cybercrimes Act 2018 that outline instances when the freedom of expression can be limited. A person who intentionally publishes false or misleading information, intending it to be considered authentic, commits an offence and can be fined up to five million shillings, imprisoned for up to two years, or both.⁸ Under Article 24 of the Constitution, the freedom of expression guaranteed by Article 33 is limited when publishing information that propagates war, incites violence, constitutes hate speech, incites ethnic tension, vilifies others, causes harm, or involves discrimination as specified in Article 27(4).⁹ Additionally, knowingly publishing false information that causes or is likely to cause panic, chaos, violence, or damage to someone’s reputation is punishable by a fine of up to five million shillings, imprisonment for up to ten years, or both.¹⁰

Digital Authoritarianism and Internet Shutdowns

Theories surrounding digital authoritarianism suggest that governments may employ internet shutdowns as tools to control information and suppress dissent under the guise of maintaining national security and public order.¹¹ This approach has been observed in various contexts where states seek to prevent the spread of misinformation or control public sentiment during times of political unrest.¹²

However, the justification of internet shutdowns on grounds of national security often clashes with the need to protect fundamental rights to freedom of expression and access to information.¹³ It is therefore important to consider instances in which access to information may be limited as outlined in the Access to Information Act 2016. Article 24 of the Constitution outlines limitations on the right of access to information as guaranteed under Article 35.¹⁴ Information disclosure is restricted if it poses a risk to national security, impedes legal processes, endangers safety, health, or life, invades individual privacy, prejudices commercial interests, harms the government’s economic management, undermines decision-making processes, jeopardises legal positions, or infringes on professional confidentiality.¹⁵

Specifically, national security-related information includes details on military strategies, covert operations, intelligence methods, foreign relations, scientific or technological matters, vulnerabilities of critical systems, and classified information under the Kenya Defence Forces Act(Cap.199).¹⁶ The Access to Information Act 2016 provides exemptions from these limitations when the information requested pertains to product or environmental testing results that reveal significant public safety or environmental risks.¹⁷ Furthermore, public entities and private bodies may be required to disclose information if the public interest in disclosure outweighs the potential harm, as determined by a court.¹⁸ Public entities are not required to provide information that is reasonably accessible by other means.¹⁹ When evaluating the public interest, considerations include promoting public accountability, ensuring effective oversight of public funds, fostering informed public debate, keeping the public aware of health, safety, and environmental risks, and ensuring regulatory bodies are fulfilling their duties.²⁰ Additionally, unless proven otherwise, information is presumed to be non-exempt if it has been held for over thirty years.²¹ The shutdowns during the #RejectFinanceBill2024 protests in Kenya serve as a case study of the delicate balance between the limitations to access to information and the enjoyment of the freedom of expression.

The Case of Kenya’s #RejectFinanceBill 2024 Protests

Background

The #RejectFinanceBill2024 protests in Kenya were a significant political event marked by widespread public opposition to new tax measures proposed in the Finance Bill 2024. During the anti-tax protests against the Finance Bill 2024, concerns arose about a potential internet shutdown.²² The Communications Authority of Kenya (CA) through its director general assured the public that there were no intentions to disrupt internet services, aligning any such action with an infringement of the Constitution.²³ Despite this, disruptions occurred²⁴, raising questions about the true intentions behind the actions.²⁵

Reasons Behind the Shutdowns and Impact on Freedom of Expression

The recent internet shutdowns can be attributed to several factors, despite official statements denying any intentional plans. Firstly, government intervention appears to be a significant cause, as the disruptions suggest deliberate action to control the flow of information.²⁶ This is in stark contrast to official denials, which claimed no such plans were in place.

Secondly, telecommunication companies have pointed to outages on undersea cables as the source of the disruptions.²⁷ However, this explanation has been met with scepticism. The targeted nature of the shutdowns implies a more deliberate and controlled effort rather than a mere technical failure.²⁸Lastly, the economic and political impact of the shutdowns cannot be overlooked. These actions seem to be aimed at controlling protests and preventing the spread of information that could undermine government authority. By restricting access to information, the shutdowns could potentially stabilise the current regime but at the cost of economic stability and public trust.²⁹

The internet shutdown during the protests in Kenya had profound implications for freedom of expression and several other areas of societal function. The shutdown constituted a clear violation of constitutional rights. Kenya’s constitution guarantees freedom of expression and access to information, both of which were directly undermined by the government’s actions.³⁰ This restriction not only contravened the nation’s legal framework but also eroded trust in the government’s commitment to uphold fundamental rights.

The suppression of digital activism was a significant consequence of the shutdown. The internet has become an indispensable tool for organising social movements and ensuring government accountability. By cutting off internet access, the government effectively restricted these activities, making it difficult for protesters to coordinate and express their views.³¹ This suppression of digital activism hindered the ability of citizens to participate fully in the democratic process.

The shutdown also limited access to crucial information. During the crisis, citizens were unable to access critical information, verify facts, and stay informed, which is contrary to the provisions of the Access to Information Act.³² This limitation not only impeded the public’s right to be informed but also contributed to a climate of uncertainty, disinformation and misinformation. One online campaign falsely accused local media of lying about the financial burden of the proposed finance bill.³³

Moreover, threats to media freedofm further exacerbated the situation. The government’s threats to shut down media outlets³⁴ restricted the free flow of information and violated Article 34 of the Kenyan Constitution, which guarantees freedom of the media.³⁵ This created an environment where journalists and media organisations operated under fear of censorship and retaliation, further stifling the free exchange of information.

The reputational damage to Kenya was another severe consequence of the internet shutdown. Kenya has often been seen as a country that respects digital rights and democratic principles. However, the government’s actions raised significant concerns about its commitment to upholding the rule of law, damaging the country’s reputation on the international stage.³⁶

Lastly, the economic impacts of the shutdown were severe. In Kenya, every hour of total internet shutdown results in the country losing about Sh1.8 billion of its GDP, according to NetBlock’s cost of internet shutdown calculator.³⁷ This economic damage not only affected the country’s financial stability but also had broader implications for businesses and individuals who rely on the internet for their livelihood.

Exploring Digital Activism in the Anti-Finance Bill Protests and Its Challenges

Digital activism has been referred to as a new method of civil mobilisation using digital technology, such as signing online petitions and participating in online discussions.³⁸ It has the potential of amplifying offline and online civic activism and political participation, with motivations determined by access to and use of digital media.³⁹ Digital activism played a central role in opposing the Finance Bill 2024 in Kenya.⁴⁰ Social media platforms like Instagram, TikTok, and X (formerly Twitter) played a crucial role in organising and coordinating the protests. These platforms served as powerful tools for digital activism, providing Kenyans with a means to amplify their concerns about the bill’s provisions. Through online campaigns and petitions, significant pressure was placed on lawmakers, urging them to reconsider the bill. Additionally, digital activism enhanced transparency around the legislative process, exposing failures in public consultation. Social media also helped overcome geographical barriers, enabling protesters across Kenya to unite and coordinate their efforts, thus creating a nationwide movement.

Digital activists opposing the Finance Bill 2024 faced several challenges apart from the internet shutdowns. The spread of misinformation posed significant difficulties in verifying information and countering misleading claims, particularly during periods when the internet was shut down. Following Kenya’s anti-tax protests, for example, there were alarming claims about a massacre in Githurai, a Nairobi suburb, with reports alleging over 200 deaths.⁴¹ However, a BBC investigation found no evidence of mass killings.⁴² Verified videos showed heavy gunfire and a strong police presence but no verifiable images of bodies. Misleading information spread on social media, including old footage from Ghana.⁴³ The Kenya National Commission on Human Rights confirmed 23 protest-related deaths but no mass killing in Githurai.⁴⁴ This incident underscores the rapid spread of misinformation during crises.

Privacy concerns also emerged due to actions like “tuwasalimie,” where activists shared personal information of politicians. While this was seen as a necessary step for accountability, it raised significant privacy issues.⁴⁵ Additionally, the government’s heavy-handed response, which included the deployment of security forces and abductions, further complicated the efforts of digital activists.⁴⁶

International organisations have strongly condemned the internet shutdown in Kenya. ARTICLE 19, a prominent human rights organisation, highlighted that internet shutdowns constitute a severe violation of freedom of expression, the right to protest, and the right to access essential information.⁴⁷ In addition, multiple organisations, including KICTANet, Paradigm Initiative, CIPESA, AIRA, Amnesty International-Kenya, the Kenyan Section of the International Commission of Jurists (ICJ Kenya), Access Now, the #KeepitOn Coalition, and the Internet Society Kenya Chapter, collectively issued statements denouncing the arbitrary restriction of the internet and the resulting gross violations of human rights.⁴⁸ These organisations urged the Kenyan government to cease the enforcement of internet shutdowns, maintain transparency, and uphold constitutional rights.⁴⁹

Measures to Prevent Future Internet Shutdowns

To prevent future internet shutdowns, the Kenyan government must prioritise the respect and protection of constitutional and human rights, particularly the rights to freedom of expression, access to information, and peaceful assembly. These rights are fundamental and should not be compromised by internet shutdowns. It is also crucial for the government to commit to transparency and accountability, providing comprehensive explanations for any internet shutdowns. Ensuring that such decisions are made transparently and with clear accountability allows the public to understand the reasons behind these significant actions.

Building on the need for protecting fundamental rights, it is essential to address the role of regulatory bodies in managing internet shutdowns. To this end, the Communications Authority of Kenya (CA) needs to strengthen its regulatory oversight by clarifying its role during internet shutdowns and ensuring robust regulatory procedures. Clear guidelines and procedures should be established to manage these situations effectively and fairly. Simultaneously, telecommunication companies should take a proactive stance by resisting unwarranted government directives and refraining from sharing customer data in contravention of the Kenya Information and Communications Act 1998.⁵⁰ Additionally, they should maintain transparency regarding any government requests for data or directives to shut down services. This approach protects customer privacy and ensures companies act in the best interests of their users.

Finally, Kenya should engage in international cooperation, working with regional and international bodies to develop frameworks that prevent internet shutdowns and protect digital rights. Such collaboration can provide a unified front against unnecessary shutdowns and promote the safeguarding of digital freedoms globally. Moreover, developing strategies for economic diversification is vital. By creating plans to adapt and maintain economic stability during internet shutdowns, Kenya can mitigate the severe economic impacts that such disruptions can cause. This forward-thinking approach ensures that the economy remains resilient even in the face of digital disruptions.

Conclusion

Internet shutdowns, such as those experienced during Kenya’s #RejectFinanceBill2024 protests represent significant violations of constitutional and international human rights laws. They undermine democratic processes, restrict freedom of expression, and have severe economic impacts. Moving forward, it is crucial for governments to uphold the integrity of the global internet, respect fundamental rights, and engage in transparent and accountable governance. By doing so, they can foster a more inclusive and democratic digital landscape that supports social, economic, and political development.

Image is by Freepik