Social Media: Kenya’s most feared form of Freedom of Expression

New forms of communication are reshaping the practice of a once narrow minded craft serving a local, regional or national public.

Today, news media use communication technology to gather text, video and images from around the world, with unprecedented speed and varying degrees of editorial control.

The same technology allows news media to disseminate this information to audiences scattered around the globe.  

Based on the above, it was emphasized that content, objectivity and journalistic ethics was important in confronting the new challenges facing media organizations.

Kenyans have not been left out in embracing  new media.

They are using it to hold to account their leaders. The way they use their funds and performance, and systems that lay emphasis on monitoring and reporting.
This is what was envisaged when Kenya promulgated its Constitution in 2010 based on the central pillar of public participation.

This entails the right to information that has remained one of the most fundamental rights world over. This owes largely to the central role it plays in realization of other rights and democratic principles.

The Constitution brought a major boost to the freedom of information campaign with the recognition of the right to information as safeguarded under Article 35 of the Constitution, 2010 and in several statutory legislation key amongst them being under Section 96 of the County Government Act, 2012.

Further, the Constitution of Kenya recognizes that ratified international instruments and conventions as forming part of the law of Kenya. As such, provisions on the right to information provided for in the African Charter on Human and People’s Right and the International Convention on Civil and Political Rights apply in Kenya.

However as Kenya heads to the polls in August,  a section Kenya’s bodies, social media is being seen as a threat to national cohesion with most claiming that hate messages on social media are some of the possible triggers of election-related violence as was witnessed in the run up to 2017 polls.

With the advent of the internet, information exchange has increased exponentially.

Governments on the other hand appear threatened by the robust access to information that is enabled by the internet and seeks to control the flow of such information for several reasons: public order, protection of state leaders and institutions, and protection of state processes and national security.

Communications Authority of Kenya (CA) Director General Francis Wangusi has warned that they will not allow persons propagating hate speech in the cyberspace.

“Currently, we have identified 21 County WhatsApp platforms and we have indicated to their administrators that they have to take action before we deal with them,” he told a stakeholders’ breakfast meeting on elections preparedness in Nairobi.

On the other hand, the National Cohesion and Integration Commission (NCIC) chairman Francis Ole Kaparo through social media, people are spreading false news.

“These proxies are the major source of fake news and to a larger extent, the problem of misinformation and hate speech.”

Kaparo also says, “If it is necessary, they (social media) will be shut out if it is necessary. So that is my stand and I believe that is what ought to be.”

In the next 2 months you will see everybody else being arrested for hate speech on social media….

Other than politicians….

— Sam Gichuru (@SamGichuru) July 17, 2017

“There are terrible people on social media, there are terrible people on social media most of them writing false information that may bring unnecessary interruption of normal order,” says Kaparo.

However, the CA has assured  they will not shut down the internet on August 8, but emphasised that fake news sites have to be shut down.

In addressing hate speech, ARTICLE 19 proposed policy guidelines outline a six part test to assess potential cases of incitement: 

the context
the speaker, including his her standing in society
intention of the speaker
content of the expression
extent and magnitude of the expression
likelihood, including imminence, of the advocated action occurring

The Kenya ICT Action Network (KICTANet), a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation says CA as a regulator should maintain its independence in making decisions about the internet.

“This can be achieved through transparency in decision making, that is, explaining in explicit terms the legal basis, nature and extent of controls to the internet and communication technologies,” in its policy brief on internet shutdowns and elections in Kenya 2017.

According to KICTANet, the internet is interconnected with many aspects of life in Kenya. “Decisions such as disruption of the internet affects its stability and openness as well as the economy and human rights. such decisions must therefore, be taken collectively and regard to the constitution.”

They recommend that, “Stakeholders that can affect an internet shutdown should allay the public’s fears by committing to keep the internet open. Election observer groups should include openness of the internet as a parameter when analysing and reporting on the freedom and fairness of elections.”