Chief Justice Martha Koome has called for responsible regulation of social media platforms to stem incitement before the August 9 general election.
The CJ on Thursday said use of the platforms was increasing as they are being used for ethnic incitement, spreading propaganda and violence.
She spoke at the opening of the a symposium bringing together 12 chief justices from East and Southern Africa to discuss digitisation and internet governance in Nairobi.
Koome said, however, the regulation of the social media and the internet must be “democratic, participatory, deliberative, and inclusive".
This includes stakeholder involvement in designing governance frameworks, she said. "It must not infringe on the protected freedom of expression," she said.
She said regulations must uphold social justice and human rights of the users so no one feels disadvantaged.
“The aim should be to ensure that the internet is a digital commons used in a way that fosters respect for human rights, social justice and promotes transparency and accountability in governance and the society," she said.
The CJ said at the height of political mobilisation for the August polls, social media was being employed to cause ethnic and racial polarisation.
“In politics, social media has at times been used to divide societies and polarise political systems. This has been a function of the deployment of hate speech, fake news and disinformation through social media platforms.”
The CJ complained that the free-for-all internet and digital technologies were also being abused for child pornography and child trafficking.
“In such a context, the need to oversight and regulate the use of digital technologies and the internet becomes imperative," Koome said.
Justifying the call for regulation, she also complained the overbearing power of big tech should be checked if the sector is to be streamlined.
“It is a reality that big technology companies behind the digital technologies we rely on have amassed significant power due to our reliance on these technologies,' the CJ said.
"Given the immense power amassed by these private entities, there is undoubtedly a need for regulating their operations,” she said.
She said those using tech space for disinformation should be treated “just in the same manner as that adopted in tackling the problem of polluters of the environment, which is also a shared common resource.”
Koome’s comment came after civil society groups participating in the forum asked the courts to take a firm stand against moves by governments in the region to shut down the internet during electioneering periods.
ICJ-Kenya chairman Protas Saende particularly called on the Kenyan courts to guard against moves to shut down social media platforms at the height of the elections.
But Koome said that should cases about internet shutdown be brought before courts, the judges should look at components like human rights, public participation, justification and the proportionality of the actions.
"In my view, judicial intervention in disputes over the governance of the digital world ought to take into account and promote human rights, social justice and the imperative of public participation and input," she said.
Koome said such an approach ensures that governance of the digital world is geared towards promoting the common good and produces public benefits.'
(Edited by V. Graham)
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