FREEDOM OF EXPRESSION

Mutemi Kiama arrest: State must not muzzle digital platforms

For context, on April 7, Edwin Mutemi Kiama was arrested for circulating infographics on Twitter using images of the President and DP

In Summary

• State and non-state actors must refrain from erecting barriers that  prevent us from establishing a link between our ‘public good’, the right to free expression and the free flow of information.

•  These are our online platforms and our information, data and content strengthens their viability as tools capable of promoting multiplicity and global interconnectedness.

Activist Edwin Mutemi Kiama at Milimani law court on Wednesday
Activist Edwin Mutemi Kiama at Milimani law court on Wednesday
Image: CAROLYNE KUBWA

The collective power of online platforms belongs to us, the people.

It is here that we increasingly demand for accountability and transparency from state and non-state actors using a multiplicity of voices. It is here we harness artistic and creative tools to share our legitimate and protected ideas, information, data and opinions, including those that criticise, offend and question.

On Twitter this week, the 2019-20 Kenya School of Law cohort demanded clarity from a conspicuously silent Council of Legal Education about the bar examinations (#CLEBarexams) and we called on the IMF to stop feeding our growing public debt and unchecked corruption (#IMFStopLoaningKenya).

The #IMFStopLoaningKenya gave rise to the hashtag #FruitsOfTheLoans counter-narrative, where the benefits of loans and their contribution to Kenya’s Vision 2030 under President Uhuru Kenyatta’s leadership were extolled.

Our numbers, due to accessibility and affordability restrictions, are still small, but we are growing in boldness, size and diversity (SIMELab, USIU, 2019).

While the #IMFStopLoaningKenya and the subsequent petition calling on the International Monetary Fund to cancel the loan did not stop it from approving it, our demands for the implementation of accountability mechanisms by the government were heard and documented by mainstream media and the international community.

And while CLE continues to remain silent, the public uproar by the cohort raised important questions about the institution’s poor communication and transparency record.

ONLINE PLATFORMS AND PUBLIC GOOD

These narratives and counter-narratives reinforce the recognition that our online platforms are a critical space for everyone, including the government, to express their opinions and viewpoints.

As we gear up to celebrate World Press Freedom Day on May 3 under the ‘Promoting Information as a Public Good’ theme, we must remember the free flow of information on new and traditional platforms is linked to our ‘collective aspirations and knowledge’.

Here, the rights to freedom of expression and to access and disseminate information are not accompanied with a requirement (legal or otherwise) of palatability or, indeed, even truth.

Therefore, imposing a legal duty of truth and then attaching criminal sanctions to this duty not only violates our human rights by restricting free information flows and legitimate expression, but also offends the potential of our online platforms as intergenerational public goods.

This is a sure sign of a failure by the government to uphold its ‘protect, respect and fulfil’ commitments under international law, and its facilitation of an unequal field.

Further, our online platforms are being monitored and surveilled by the State, not to protect us from ‘propaganda for war’ or content that ‘incites violence’ (Article 33 (2) of the Constitution), but to monitor our opinions, control our narratives, and intimidate and harass us for being ‘too expressive’.

For context, on April 7, Edwin Mutemi Kiama was arrested for circulating infographics on Twitter using images of the President and the Deputy President of Kenya which, ostensibly, decried the ‘bad loans negotiated and/or borrowed’ by the state under their leadership.

These infographics fall squarely in the remit of protected artistic and creative expression and formed part of our collective appeal under the #IMFStopLoaningKenya.

For contributing to our appeal using creative means, Kiama was arrested and charged using Section 22 of the Computer Misuse and Cybercrimes Act, which prohibits the publication of ‘false, misleading or fictitious data’ or data. This attracts a disproportionate fine of Sh5 million or imprisonment of up to two years, or both.

For further context, our proactivity on online platforms perturbs our legislators, law-enforcement officials and those in positions of power, leading to recurring calls for tighter content regulation.

Towards the end of 2019, Malava MP Malulu Injendi tabled the Kenyan Information and Communication (Amendment) Bill (National Assembly Bill No. 61 of 2019) before the National Assembly.

This Bill attempted to regulate the use of our social media platforms by imposing 'responsible use’ obligations on our social media users, imposing content moderation responsibilities on our administrators of groups, introducing a mandatory licensing system for social media platforms, and registering our bloggers, among others.

The  National Assembly Departmental Committee on Communication, Information and Innovation, backed by the support of multiple stakeholders, protected our access and use of online platforms. It observed that the proposed Bill offended our constitutional rights to free expression, media freedom, privacy and data protection.

CORPORATE ENTITIES 

In this ecosystem, corporate entities also play a crucial role as facilitators of the free flow of information and ‘gatekeepers’ over our data and content.

Despite this, online platform providers, e.g., social media platforms, acknowledge, but refuse to properly address the interruption to the free flow of information occasioned by human moderators and algorithms that exacerbate erroneous content takedowns and the erroneous suspension/shutdown of our accounts (ARTICLE 19, #MissingVoices).

Further, these platforms fail to address, using contextualised responses, the impact their algorithms have on our local media environments and the type of journalistic content we access and read.

Between 2018-19, ARTICLE 19 and partners, observed high incidences of ‘hashtag hijacking’ by local and non-local actors for monetary purposes during conversations on the 2019 Housing and Population Census.

The second pillar of the global theme for the World Press Freedom Day 2021 is clear: Online platforms must prioritise transparency, given their ability to exacerbate the spread of ‘fake’ news and disinformation and ‘mediate’ journalism, consequently impacting the free flow of information. We are not merely products and our localised experiences and contexts matter in the global platform market.

State and non-state actors must refrain from erecting barriers which prevent us from establishing a link between our ‘public good’, the right to free expression and the free flow of information. These are our online platforms and our information, data and content strengthens their viability as tools capable of promoting multiplicity and global interconnectedness.

As we feed these platforms with our collective power, the platforms must feed us back with greater transparency and accountability and the state must protect, promote and fulfil its obligations under international law.

It is here that we demand that the transformative potential of online platforms be preserved and expanded, rather than attacked and shrunk.

Mwanzia is a program officer, Digital at ARTICLE 19 Eastern Africa

Edited by EKibii