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Symposium Series: Gagging Free Speech (Part I)


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Article by Mugambi Kiai, Gakii Winfred and Sigi W. Mwanzia,


“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”

John Stuart Mill, On Liberty


This three-part series explores the gag on free speech and the resulting violations and infringements that Kenyan officials meted out to Kenyan individuals by way of two unconstitutional laws: the Computer Misuse and Cybercrimes Act (CMCA) 2018 and the Kenya Films and Stage Plays Act (CAP 222).


Prologue: Expanding Appetite to Stifle Freedom of Expression


In March 2021, parliamentary member Hon. Aden Duale announced that he would propose CMCA amendments to Parliament that would expand the government’s regulation of pornography. Duale’s announcement is concerning given the existing codification of various content-related offences, like criminal defamation, that violate human rights in the law.


Simultaneously, abuse of the provisions of CAP 222, a colonial-era relic, continue to stifle freedom of artistic and creative expression. The emboldened chief executive officer of the Kenya Film and Classification Board (KFCB), Ezekiel Mutua, is spearheading the restrictions under the guise of ‘protecting children from online harm.’


State officials and agents have misused and abused the text of the CMCA and CAP 222. They have targeted individuals for expressing themselves on social, economic, and political challenges in Kenya. This series of articles will illustrate how state and private actors are using the CMCA and CAP 222 to arbitrarily intimidate, harass, summon, detain and charge individuals. Both of the aforementioned laws are subject to proposed amendments that would effectively give the government unimaginably broad and unfettered power to shepherd the truth using criminal sanctions.


Episode One


On August 18, 2020, officers from the Directorate of Criminal Investigations (DCI), Operations Branch arrested Milton Were and Jack Okinyi. Before booking Were and Okinyi at Capitol Hill Police Station, the officers drove them around Nairobi for hours. Before and during the arrests, the officers reportedly entered Were’s private home without a warrant, assaulted one of them, and confiscated their electronic gadgets, amongst other human rights violations.


Two days later, Were and Okinyi were finally brought to Kibera Law Courts and charged with the ‘publication of false information’ under Section 23 of the CMCA. The provision enacts a legal duty of “truth”–an obligation individuals bear to publish information that, according to the State, is objective, reliable and factual–and attracts a fine not exceeding 5 million shillings (USD 45,176) or imprisonment of up to ten years, or both. Authorities arrested and charged Were and Okinyi because of a blog post, which was taken down, that detailed a billion-shilling road tender corruption scandal.


Episode Two


On March 11, 2021, KFCB Compliance Officers and DCI officers arrested prominent Kenyan comedian Eric Omondi hours after he had uploaded his reality show “Wife Material” on his social media accounts. The KFCB claims that Omondi violated Section 12 of CAP 222 which prohibits the exhibition, distribution, or broadcast of any film without registration or certification by the KFCB. A violation of CAP 222 Section 12 is punishable by a 100,000 shillings (USD 903) fine or imprisonment of up to five years, or both.


The lived experiences of Milton Were, Jack Okinyi, and Eric Omondi offer a glimpse into the consequences of vague and imprecisely drafted pieces of law that are clearly in conflict with the Constitution of Kenya. Article 33 of the Constitution is clear: “every person has the right to freedom of expression which includes (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.”


This right may be limited only in exceptional circumstances such as curtailing incitement to violence. However, Article 24 of the Constitution provides that these exceptional circumstances are subject to a three-part test of legality: legitimacy, necessity, and proportionality. Section 23 and Section 12 of the CMCA and CAP 222, respectively, are drops in the ocean of the powerful and discretionary instruments state authorities possess. The two laws do not meet the high threshold for limiting the right to free expression and, consequently, neither passes constitutional muster. The provisions are overbroad and provide room for abuse by the police, failing the test of legality.


Flashback


Under the guise of law-enforcement, Kenyan authorities now rely on authoritarian readings of the law and deploy tyrannical practices to stifle public commentary on social and political issues with wanton impunity. This bad faith law enforcement amounts to a frontal and brutal assault on the Constitution and egregiously violates the social contract between the State and citizens which balances the power dynamic between the two.


These affronts are reminiscent of previous Kenyan human rights violations. In 1990, Presbyterian Church of East Africa clergyman Reverend Lawford Ndege Imunde was arrested, prosecuted, and jailed under sedition laws for simply penning his personal thoughts about Robert Ouko’s death in his personal diary.


Just like sedition, prior restraint and content-related provisions, such as those exercised over Omondi and Were and Okinyi respectively, have a notoriously problematic challenge: they both create powerful and subjective instruments for authorities to determine what is and what is not decent, moral, or truthful. Their discretion extends into the thoughts and activities which we indulge privately and in the confines of our bedrooms. The source of this unfettered discretion is twofold: the provisions are overly broad and law enforcement powers remain unchecked. The provisions do not define any specific conduct which must be regulated and restricted, allowing unchecked law enforcement officers to apply them as they see fit in politically motivated cases.


At this point, it is necessary to look at the history and purpose of the CMCA and CAP 222, and their relation to the right to freedom of expression. We will also examine the government’s proposed expansion of its content regulation powers in the pornography field, and look into Ezekiel Mutua’s violations of free speech during his tenure at the Board.


Authors

All three authors work with ARTICLE 19 Eastern Africa. Kiai is the Regional Director; Gakii is a Program Officer, Civic Space; Mwanzia is a Program Officer, Digital.


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