Bloggers and Social media users have been asked to practice responsibility time and again, in a day that blogging has risen close to being the most dependable media, more and more arrests are being made with claim that this ‘media owners’ are not credible but in many cases, it has been the case of the hurting truth.
Amid being blunt and ‘Truthful’, bloggers and social media users should be well aware of the law to know where to draw the line. Laws have therefore been put in place to control the new day media some we might be aware of and some that we might have no idea about.
Laws used to charge bloggers and social media users
Two laws stick out as being used to suppress online freedom of expression. It should be noted that bloggers are conscious of the fact that freedom of expression which the Constitution guarantees are not absolute. They come with great responsibilities. One is section 132 of the penal code.
It states: “Undermining authority of public officer Any person who, without lawful excuse, the burden of proof where of shall lie upon him, utters, prints, publishes any words, or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer or any class of public officers is guilty of an offence and is liable to imprisonment for a term not exceeding three years.
Over the period, some bloggers have been arrested and either held to be investigated or charged in court. It is worth to note that the penal code was enacted in 1948. At that time, Kenya was still under the colonial rule. For a law that was used to impede freedoms like of movement, association and speech to be alive and ‘thriving’ in this new constitutional dispensation is unfortunate. It goes to show the lack of appreciation of the Constitution and drive by the state to muzzle that which the Constitution provides.
Secondly, the other infamous charge is ‘misuse of licensed telecommunications equipment’. It is under the Kenya Information and Communications Act (KICA) 2013. Under its section 29, “a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person commits an offence.
The offence is punishable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.” This charge is therefore criminalizing legitimate freedom of expression by criminalizing the use of tools such as smart phones, the internet, laptops for self-expression on social media platforms. These tools, when used to make certain assertions which are not in themselves derogatory or bordering of hate speech or defaming, for someone to be charged for using them is tantamount to criminalizing freedom of expression.
In recent cases in which this section has been used. In the case brought against Willis Adika32 an employee of Sauti ya Mtaa33, a citizen journalism platform housed by Pawa254 following a tweet that was published by Kenyan activist Boniface Mwangi following Adika’s arrest. Geoffrey Andare, a web developer was, early this year, charged under Section 2934 of the Kenya Information and Communication (KICA) Act.
Geoffrey Andare, filed a case which was mentioned in court on 19th of May 2015 before Justice Mumbi Ngugi, in which Article 19 organisation filed to be enjoined as an interested party. Article 19, the organization joining the suit as an interested party in its filing documents argues that the section should be, “declared unconstitutional because it does not comply with Article 33 (2) of the Constitution in that its provisions falls outside the prescribed criteria for limiting the right to freedom of expression.”
Article 33 (1) (a) of the Constitution of Kenya (2010) provides that “every person has the right to freedom of expression which includes the freedom to seek, receive impart information or ideas.”
Article 33 (2) states: “the right to freedom of expression does not extend to a) Propaganda for war; b) Incitement to violence; c) Hate speech; or d) Advocacy for hatred that; (i) constitutes ethnic incitement, vilification of others or incitement to cause harm or (ii) based on any ground of discrimination as per Article 2736.”
Article 19 therefore contends that Section 29 of KICA is an unconstitutional limitation to the right to freedom of expression because it does not fall within the permitted (a,b,c and d above) limitations under Article 33 (2) and thus should be struck out of Kenyan statute books.
Article 19 further contends that the section is vague and unclear and thus unenforceable because an average citizen would not be able to know what exact conduct is tantamount to an offence. What exactly is “misuse of a licensed telecommunication device?’ at what point does normal use become misuse?
Know your law
Many Kenyan bloggers and influencers are unaware of the existing Kenyan laws that touch on internet use, the freedoms provisioned for from the Kenyan Constitution 2010 as well as the limitation that are in the existing laws.
These are the BAKE findings from a user survey conducted in the training workshop series – ‘The Internet and Law in Kenya’ carried out by Mugambi Laibuta an Advocate of the High Court in conjunction with BAKE in Nairobi and Kisumu.
Victor Nzomo, an intellectual property lawyer once authored that “A cardinal rule of criminal responsibility under the Penal Code is stated under section 7 which reads “ignorance of the law does not afford any excuse for act or omission…unless knowledge of the law by the offender is expressly to be an element of the offence.” It means that ignorance of the law is neither defense nor that is allow someone to break the law Therefore it is imperative for all users of social media to familiarize themselves with the Penal Code.”