Tracking Freedom of Speech and Expression Laws in Kenya, Suits, and Current Wins

Section 194 of the Penal Code has also been ruled out from the Act. It stated that it is a criminal offense to defame a person.

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Kenyan bloggers, and BAKE have never shied away from expressing what is on their mind, and this includes faulting laws or proposals that are meant to gag Kenyan’s freedom of speech and expression.

This has been going on for a while, and to add context to what we are about to share, here is a brief background.

Background


Back in 2019, the state sponsored a proposal named the Kenya Information and Communication (Amendment) Bill 2019 that sought, allegedly, to bring some sanity in how group administrators in popular chat and social media app, WhatsApp and Facebook, respectively conduct themselves.

The bill had also proposed bloggers register with the CA, as is the case with the aforementioned group admins. It added that group administrators needed to submit their details to the CA, which include their location addresses and some information about their users.

During its first hearing later that year, the State revealed it had not been happy in the manner Kenyans and online media channels and platforms such as blogs had, or continue to conduct themselves.

As said, the bill aimed to introduce some sanity in the space, although others opined that it targeted to quiet some vocal online publishers.

A year earlier in 2018, the Kenya Film and Classification Board (KFCB) announced requirements on what you would need to pay for filming in Kenya, including daily filming fees, license for a documentary, license for a future-length movie, et al.

This, of course, was objected widely, and the likes of BAKE released statements, arguing that ‘the definition as currently made in the Act are erroneously and selfishly interpreted by the Board (KFCB) and the CEO (now former CEO Ezekiel Mutua) cannot continue unchallenged.’

Around the same time, BAKE had also questioned Computer Misuse Clauses that had been included in the now signed Financial Act, 2018. You can find out more details here.

The case was to be ruled on Feb 2020, but it was adjourned.  

Undeterred, BAKE continued to disagree with the decision and said it was worried about sections that it thought were unconstitutional and could infringe on the freedom of expression, freedom of opinion, freedom of the media, and right to privacy.

Those sections discussed fraudulent use of electronic data, cybersquatting, intentional publishing of false or misleading data, interception of content data, and a provision on child pornography among others.

Developments

These works have so far bore some fruit based on recent developments from the courts.

First, Section 132 of the Penal Code that developed an offense referred to as ‘undermining the authority of a public officer’ has been repealed.

The case had been forwarded to the courts by blogger and MP aspirant Robert Alai. It was faulted because the law did not provide for a fine for such an offense, and perpetrators were to be sent to jail for up to three years without any other option.

Section 66 of the Penal Code has also been found to be unconstitutional. The law stated that bloggers must not publish alarming stories or essays that can lead to public unrest or fear.

The case was taken to the courts by blogger Cyprian Nyakundi.

Furthermore, Section 29 of the Kenya Information and Communication Act has also been invalidated. It detailed cases of improper use of a licensed communications system or sharing information that annoys or inconveniences another person.

Lastly, Section 194 of the Penal Code has also been ruled out from the Act. It stated that it is a criminal offense to defame a person.


It was legally protested by Facebook users, Jacqueline Okuta and Jackson Njeru, who argued that the law infringed upon people’s right to freedom of expression.

This is a step in the right direction, and it is likely that such developments and more cases will be filed in 2022 as the country nears the polls.


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Kenn Abuya is a friend of technology, with bias in enterprise and mobile tech. Share your thoughts, tips and hate mail at [email protected]

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