• Legislation seeks to limit freedom of expression, association and to some extent freedom of assembly online.
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A Bill sponsored by Malava MP Moses Injendi proposes far reaching changes such as a requirement that Bloggs, Facebook and WhatsApp groups must be registered; and, that their administrators need to pay a prescribed fee for licenses to maintain and operate them.
They will also be required to regulate content and approve members who must be over 18 and furnish information to the Communications Authority of Kenya regarding their physical addresses and members on demand.
The Bill places a penalty of a fine not exceeding Sh200,000 or imprisonment for a year for those found to be in contravention of the law and a further Sh500,000 or two-year jail term for posting what the Bill terms as ‘degrading’ or ‘intimidating’ content online.
It criminalises content deemed ‘prejudicial’ against race, gender, ethnicity, nationality, religion, political affiliation, language, ability or appearance.In an attempt to tackle ‘fake’ or ‘false’ news, it proposes the criminalisation of‘unfair’, ‘inaccurate’ and ‘biased’ content.
Clearly, this piece of legislation seeks to limit freedom of expression, association and to some extent freedom of assembly online. The big question is, do the prepositions in it meet the constitutional requirements on how and when rights and freedom should be justifiably limited? Are the proposed changes necessary and proportional in and open and democratic society bearing in mind all factors?
These days, the internet has become an information highway for people to express themselves, obtain information and share that information instantly and with ease. It has become the medium for communication and information which has enhanced democracy by allowing citizens to participate in governance easily. WhatsApp and Facebook groups have further allowed people with similar interests to interact for various reasons from the poignant and serious to the mundane.
For instance, these groups can be formed for purposes of consumer protection, appreciation of fashion, fundraising for friends who are bereaved or suffering from disease, for sharing cat videos and even for pure gossip.
At times, just like any other platforms where ideas are shared, undesirable things such as hate speech, defamation, racism, bullying or false news find their way into the discourse. However, in the marketplace of ideas, it is encouraged that all with something to say be allowed to express themselves to allow the true and sound to survive and the false and the unsound be vanquished.
A very important component of the marketplace of ideas is that Government should keep out of the battle and not weigh the odds in favor of one side or the other. This is because no person has the monopoly of truth and a free and healthy discourse allows matters to be canvassed and discussed for merits and demerits to emerge and people to use their wisdom to choose the best option.
The only exceptions in modern, democratic societies is content that directly calls for violence, war, genocide or encourages exploitation or contamination of children. Under our constitution, Article 33 (2) provides that freedom of expression does not extend to propaganda for war; incitement to violence; hate speech; or advocacy of hatred.
However, a closer look at the bill reveals that in purports to invent its own limitations to include degrading, intimidating, unfair, inaccurate, biased or prejudicial content.
As a matter of law, any limitation to any right must be clear and concise. It cannot be overly vague, broad ambiguous or subjective so as to allow individuals and even law enforcement to draw their own conclusions as to their meanings. What is intimidating, unfair or inaccurate to you might be perfectly normal to another person.
Tanzania has gone down this path with devastating consequences. Whereas the Tanzania Cybercrimes Law of 2015 was designed to curb cybercrimes such as hacking, it has turned into a tool of political oppression of dissenting voices, especially members of the opposition, journalists and academics - who dare question any government policy or action. The government also requires bloggers, podcasts and YouTube channels to register and obtain licenses by paying a subscribed fee.
Why is there a move to have African governments regulate social media? Could it be because someone is uncomfortable with online discourse where citizens able to engage on what is going on around them?
It could be, governments had ways to deal with journalists and media houses through the dangling the carrot of government advertising, however, the internet poses a new challenge because it is harder to target individuals.
Apart from being a logistical nightmare to register all WhatsApp and Facebook groups in Kenya, this idea is not at all practical. Moreover, the imposition of a license fee is a case of the state reaping where it did not sow. There is an increasing trend of over-regulation and over-taxation by state corporations. Ideally, all revenue collection should be done through the KRA.
For the sake of our democracy, I hope the National Assembly treats the Bill with the contempt it deserves.
Demas Kiprono is a Constitutional & Human Rights Lawyer
Email: [email protected] Twitter: @kipdemas