Recently, public debate has been rife amongst Kenyans and political leaders regarding the use of social media to spread information in real-time for consumers to enable them to make informed decisions.
Fond of publishing false information on social media platforms deliberately, these days with a big following to gain traction and engagement? You could be slapped with a tough penalty…don’t close this page yet. Keep scrolling, with patience, and let us explain.
Recently, public debate has been rife amongst Kenyans and political leaders regarding the use of social media to spread information in real-time for consumers to enable them to make informed decisions. This has happened in two key events over the past year; the Gen Z-led anti-government protests and the recent abductions.
Whereas Kenyans have condemned the abductions, the spread of false information online has been a hot topic, even attracting the attention of President William Ruto who has spoken on the spread of fake news on multiple occasions.
Ruto’s allies have recently lamented over the spread of satire painting the President in a bad light, even though the Head of State in just two years has attracted intense criticism over government policies. They have gone ahead to call for the enforcement of the Computer Misuse and Cybercrimes Act 2018.
President William Ruto chairing a Cabinet meeting at State House on November 14, 2024. /PCS
Overview: Computer Misuse and Cybercrimes Act 2018
Let us take a look at the Act in a nutshell: on May 16, 2018, former President Uhuru Kenyatta assented to the Computer Misuse and Cybercrimes Act (‘the Act’) which provides for offences relating to computer systems, enabling among other things, prompt detection and prosecution of computer and cybercrime.
The Act among other things, currently criminalises fake news as well as the publication of false information. Shortly after its enactment, the Bloggers Association of Kenya (BAKE), challenged its constitutionality before the High Court of Kenya, resulting in the suspension of 26 sections pending the hearing and determination of the suit.
The grounds of the petition were the limitation of various fundamental freedoms by provisions of the Act. However, on February 20, 2020, the High Court gave the final judgment that upheld, in its entirety, the constitutionality of the Act.
Sections 22 & 23
Our focus for this article is Sections 22 and 23 of the Act, covering the publication of false information to incite members of the public either on social media or through media platforms, both mainstream and digital.
According to Section 22, a person who intentionally publishes false, misleading or fictitious data or misinforms with the intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding Ksh5 million or to imprisonment for a term not exceeding two years, or to both.
Notably, the Act holds that freedom of expression can be limited when misinformation can lead to war/violence, constitutes hate speech, or constitutes ethnic incitement.
Section 23 has an even tougher jail sentence for being part of a calculated plan to cause violence and panic or ruin the reputation of someone.
“A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of a person commits an offence and shall on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years, or to both.” reads the Act in part.
However, amidst the ongoing debate on the law, some leaders have raised concerns over the constitutionality of the Act which has been challenged in court. Nairobi Senator Edwin Sifuna opined that Kenyans were simply opposed to the policies of the Kenya Kwanza government and that social media was not the main issue behind the abductions.
“I have been shocked beyond words by some of the speeches here in Bungoma County. If those who spoke are the people he listens to, Ruto is in more trouble than he knows. Freedom of speech cannot be limited beyond the limitations in Article 33,” Sifuna expressed on Friday, January 3 on X
“Social media is not the problem. The problem is the policies of this regime that continue to hurt Kenyans. We have started the year on a very bad note.”
Computer Misuse and Cybercrime (Amendment) Bill, 2024
Amidst the debate, an amendment to the Act, the Computer Misuse and Cybercrime (Amendment) Bill, 2024, was proposed on August 9, 2024, by the National Assembly, which would give the government power to block websites and applications, “where it is proved that a website or application promotes illegal activities, child pornography, terrorism, extreme religious and cultic practices, issue a directive to render the website or application inaccessible.” Social media is considered an application too.
A person using his smartphone. /FILE
However, the Kenya Information Communication Technology Action Network (KICTANet) comprising over 50 organisations in the private sector, called for the withdrawal of the contentious proposal.
“Given Kenya’s recent history of shutting down the Internet in June 2024 and blocking messaging applications like Telegram in November 2023, the proposal does not come as a surprise. It appears to be yet another attempt to formalise and expand government censorship,” said KICTANet in a statement on October 4, 2024.
“A similar proposal was made in the Computer Misuse and Cybercrimes (Amendment) Bill, 2021, which was later withdrawn following pushback by civil society. This new clause in the bill is equally problematic and should be withdrawn.”
KICTANet feared that implementing this clause could give the government unnecessary powers to control Kenyans’ freedom of speech in whichever format and reduction of the freedoms of online platforms which offer an alternative method of free speech, including news websites.
“The implementation of the provision could lead to censorship of legitimate speech, including political dissent or religious expression. It may also pave the way for arbitrary blocking of websites and applications or invasive surveillance practices, particularly during politically sensitive times like protests and elections, if the events following the #RejectFinanceBill2024 are anything to go by. Most recently, the prosecution of David Morara Kebaso for the offence of cyber harassment signals the likelihood of more repressive action by the state against critical speech,” added the statement.