Repeal colonial laws to protect freedom of expression online

We can all agree that information is power and whoever possesses it holds control of the narrative.

This means that access to information is vital to our existence and progress as a human society. That said, it is surprising to see that the passage of information is still filtered and inhibited by different players in society during modern times.

Ideally, with the current technological developments, especially the high use of the internet and social media, you would expect people to have access to a wide array of unfiltered and unbiased information. But the recent reports and overwhelming court cases reveal a different picture; there is a need to fight for online freedom of expression.

In a judgment made last week by the High Court at Nairobi Constitutional and Human Rights Division, Cyprian Adama the petitioner and a blogger, went to court to challenge Section 66 of the Penal Code which he had been charged under in Kiambu chief magistrate’s court.

The High Court found Section 66 of the Penal Code to be unconstitutional. The section provides that any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb public peace is guilty of a misdemeanour.

The accused was found guilty of publishing some rumour on his Twitter account, and in his defence, he argued that the court's ruling went against his freedom of expression. The incident in 2018 is merely a fraction of the many cases and scenarios where individuals found themselves in trouble for posting some pieces of information on their social media.

Justice Weldon Korir noted that Section 66 of the Penal Code is colonial and that the country has a robust and progressive Bill of Rights that should not be curtailed by pre-colonial and criminal laws.

Arguably, the onset of the internet and its accessibility made it possible to exercise the freedom of expression to an entirely new degree. In other words, through the internet, people can access free data, impart, and receive ideas without interference. Similarly, individuals are free to hold and pass on their opinions. This, however, has only been fully applicable in theory. The notion of freedom of expression and uninterrupted online information sharing is still farfetched, especially in misgoverned countries.

It is not surprising to find internet users restricted from accessing crucial information, especially when the said information could reveal unwanted secrets. Nonetheless, this begs the question, what is it that the administration wants to hide from its people? Online restrictions to freedom of expression occur in various ways: the restriction of privacy and the filtering of supposedly “bad” information.

It is true that while the internet allows free access to information and ideas, it can still be misused to spread defaming, inciting, or life-threatening messages. In this case, the government and administrative parties are at full rights to charge, convict or penalise the offenders when evidence points to malice. But this does not necessarily mean that everyone should be barred from voicing their opinions online. According to Article 19, the Kenyan Constitution contains special acts such as the Computer Misuse and Cybercrimes Act 2018, which inhibit online freedom of expression.

In any case, most people depend on the opinions, discussions, and posts they see online to make decisions, specifically regarding the country and politics. This means that the internet sheds light on both the good and bad. More often, when anyone, be it a politician, a leader, or a celebrity, is praised online, they receive the praises with zeal and enthusiasm. However, when the coin is flipped, all hell breaks loose. The ubiquitous incidents of people being sued, threatened, or charged for posting ideas on the internet portrays a degrading society, one with ill-advised individuals who take no heed to simple criticism and do not want anyone airing their dirty laundry. The UNHCR noted that Kenya, during the election season, restricted critical tweets and even placed paid bloggers to control the narrative regarding the elections.

We can all agree that a little opposition pushes progress, and criticism keeps the government and political leaders in check. As such, it is sad when we see political leaders engaging in undignified battles with the common mwananchi who allegedly called them a liar, or corrupt. Ideally, the lack of online freedom, information filtering, and interruption could be blamed for the poor state of our nation. Without opposition, the government, without any control or monitoring, engage in ill-advised ventures leaving the people to pay the consequences. Thanks to the self-governing leaders, there is an unprecedented level of corruption in the country, who continue to take and pile their fortunes.

Social media and the internet offer the last resort to the suffering citizens. So, next time a young man living in a single room in Kibera calls their leader a thief, or corrupt, don't fight or sue him. Instead, dig into the root of the problem. As George Washington once said, "If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter."

 

Muthuri Kathure is the senior program officer, civic space, at Article 19 Eastern Africa.