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Bloggers and law enforcers, who is on the wrong on freedom of speech?

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  • 1 year ago
  • Posted: February 1, 2016 at 11:29 am

We want freedom of expression, but to what extent? Before you do something manipulative or carrying out an actual attack, it’s important to know that nobody or no act is immune to prosecution. This year alone has seen a good number of bloggers being scrutinized by the authorities because of infringing the law. The question is; did they break any norm? Maybe the stakeholders are just confused since many Acts of parliament touch on the freedom of speech and misuse of gadgets.

Issue
Bloggers post their opinions on Twitter with the highest level of temerity and they are widely recognized as influencers. In Kenya, the most controversial are Robert Alai, Cyprian Nyakundi, Patrick Safari, Eddy Illah, Yassim Juma and George Nyongesa. However, the law enforcers always have a different idea after a controversial post has been tweeted or published on a website. In January, about six bloggers were accused of flouting Section 29 of K.I.C.A and other regulations.

Anthony Mburu was taken to court because he published false information linking William Kabogo to importation of sub-standard eggs. The guy was accused of misdemeanor under Section 66(1) of the Penal Code. In addition, Judith Akolo found herself on the wrong side of the law after retweeting a post. Juma was also accused for breaking section 29 of the Kenya Information and Communications Act.

Word on the corridors of justice provides that, the Communication Authority of Kenya is being misused and the police need to differentiate between a civil wrong and a criminal act. Ordinarily, the police or whoever writes down these offences frustrates freedom of expression and the right to own property.

Principle

First, the Constitution of Kenya gives everybody the full and equal enjoyment of all rights and fundamental freedoms. In freedom of speech, Article 33 of the Constitution of Kenya provides that everybody has the right to freedom of expression e.g. freedom to seek, receive or impart information. However, the freedoms should not extend to propaganda, incitement to violence, hate speech and advocacy of hatred.

Secondly, Section 66 of The Penal Code provides that any person who publishes any false statement, rumor or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanor. The same Penal Code goes on to say, the accused has the right to defend himself if proves that prior to publication, he took such measures to verify the accuracy of the statement, rumor or report as to lead him reasonably to believe that it was true.

The Kenya Information and Communications Act is mandated to cover communication through the internet and technology usage; the Act addresses issues like misuse of communication gadgets or license all ICT systems, equipment and services, including telecommunications, postal, courier and broadcasting. A case study is where a tenant was making international call termination using SIMBOX devices.

It’s ironic when Bloggers and Journalists are accused of breaking section 29 of K.I.C.A which provides that sending a grossly offensive message using a licensed device commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both. I think this particular section should be clear to avoid confusion.

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Application

Professor Jan Aart Scholte, director of the Centre for the Study of Globalization and Regionalization defines civil society as a political space where voluntary associations deliberately seek to shape the rules that govern aspects of social life. From the definition, I am tempted to say that bloggers can be identified as activists who fight for our political and social good.

Every blogger is protected under Chapter Four of the Bill of Rights. The act of bloggers expressing their views and participating in the affairs of their country is guaranteed under the constitution. However, the small groups of individuals who come up and post their views are undermined by either leaders or police officers.
As provided by the Constitution of Kenya, freedom of speech should not be used to crucify other people through propaganda that could lead to war. Now, do bloggers defame or prosecute other people on social media platforms? If yes, is it a civil wrong or criminal? Police officers are harassing bloggers which is against the law since bloggers are mostly accused of defamation. Anyway, if the accused is a criminal, the prosecution should prove intention to commit the crime.

Before arresting or confiscating a blogger’s gadgets, the police should consider investigating the person and coming up with the right regulation to place their accusation. If it’s to establish criminal liability, then the Penal Code Section 66 should be considered and determine if the accused has the right to defend himself if he proves that prior to publication, he or she took such measures to verify the accuracy of the statement, rumor or report as to lead him reasonably to believe that it was true.

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Erick Vateta
Tech Editor at Kachwanya.com
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Erick Vateta is a lawyer by training, poet, script and creative writer by talent, a model, and tech enthusiast. He covers International tech trends, data security and cyber attacks.
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