Symposium Series: Gagging Free Speech (Part II) - Auditing the CMCA
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).
To understand the gag which the Computer Misuse and Cybercrimes Act (CMCA) 2018 places on the right to free expression, we must first cast our gaze backwards and review its history and purpose.
Background of the CMCA
Underpinning the amendments to the Kenya Information and Communications Act, 1998 (KICA) in 2013, via the Kenya Information and Communication Amendment Act (2013), was the recognition that Kenya lacked a comprehensive cybersecurity law. The 2013 amendment led to the restructuring of the then Communications Commission of Kenya into the Communications Authority of Kenya (CA).
Shortly thereafter, in 2014, two different government bodies released three legal and policy responses. These included the Office of the Director of Public Prosecutions’ draft Cybercrime and Computer-related Crimes Bill, and the ICT Ministry’s National Cyber Security Strategy and National ICT Masterplan (2014-2017).
Two years later, three bodies released competing laws and regulations, including the ICT Ministry (Computer and Cybercrime Bill (2016)), the CA (Kenya Information Communications (Cyber-Security) Regulations 2016 (CA Regulations)), and the Senate (Cybersecurity and Protection Bill (2016)). Each organ invited and accepted comments from the general public.
In 2018, the ICT Ministry’s bill was deliberated, amended, and approved exclusively by the National Assembly. On May 30, 2018, the CMCA was operationalized, with stakeholders flagging unconstitutional provisions in the text of the law that would impact free speech. The CMCA’s long title states that the purpose of the law is to provide for “offences relating to computer systems; enable timely and effective detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes; facilitate international co-operation in dealing with computer and cybercrime matters; and for connected purposes.”
There was a pressing need to address cybersecurity and cybercrime issues in Kenya. However, these different legal and policy processes revealed that competing interests existed at the Executive and Parliamentary levels, which prevented coordination between government agencies. In turn, (cue, mischief number one) each entity spent taxpayer money and the public wasted time and resources contributing to processes which were either withdrawn (such as the Senate Bill) or simply faded away (such as the CA Regulations).
This brief background also acts as a precursor to recognizing that the law-making process codifies principles and ideas for the protection of the general public, rather than for the punishment of individual residents in the Republic or the protection of select groups.
Mischief in the Hansard Reports
We combed through the Hansard reports with one question in mind: whose best interest were Kenyan legislators protecting?
Some illustrative comments in the Hansard from members of the National Assembly reveal the mindset of Kenyan leaders during parliamentary deliberations on the Bill. On fake news, Hon. Maanzo stated: ‘now there are electronic newspapers, which just run on rumours and fake news’. On pornography, Hon. Aden Duale warned: ‘Our children are not safe because they can access and watch nude photos and pornography videos. We must protect the family. We must protect our families. Protecting the family starts with our children. We should only allow systems that bar access to child pornography or any type of pornography’. On cyberstalking and bullying, Duale lamented: ‘we are the greatest victims of cyber stalking and bullying. We are normally threatened’. On WhatsApp groups, Duale declared: ‘If you are [an] administrator of a WhatsApp group and you are watching me, by the time this Bill is signed into law, there will be very few administrators of WhatsApp groups.’
The leaders’ statements reveal extensive mischief in Kenya’s legislative history after the enactment of the country’s transformative Constitution, and demonstrate that the ‘best interests’ the legislature was protecting were those of the majority of members of the National Assembly. The National Assembly’s comments evince an intent to curb content affecting and ‘depicting Members and leaders negatively’ and motivated by an expansion of ‘national security’ powers to the State. This flies in the face of constitutional edicts prescribing Parliament’s role. Under Article 94 of the Constitution, Parliament (including the National Assembly and the Senate) derives its legislative authority from ‘the people’, ‘manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty’ and is mandated to ‘protect’ the Constitution while promoting the democratic governance of the Republic.
However, the Hansard reports revealed a flagrant disregard for this constitutional mandate, with members of the National Assembly ignoring judicial pronouncements protecting the Constitution, thus watering down its protections. For example, the House did not address the draft bill’s failure to define ‘national security’ and potential to provide the State with ‘dangerous carte blanche powers.’
One of the most alarming examples of Parliament’s gag on free speech was the failure to address an observation by two National Assembly members that ‘the offence of publishing false or misleading data or information’ was comparable to a provision (criminal defamation) that was declared an unconstitutional violation of Article 33 of the Constitution in 2017.
For context, the offence of criminal defamation under Section 194 of the Penal Code, which was invalidated in the 2017 Jacqueline Okuta & another v Attorney General & 2 others case, reads as follows:
"Any person who, by print, writing, painting or effigy, or by any means
otherwise than solely by gestures, spoken words or other sounds, unlawfully
publishes any defamatory matter concerning another person, with intent to
defame that other person, is guilty of the misdemeanour termed libel."
Section 23 of the CMCA, which Kenyan legislators opted to retain, thereby prohibiting the publication of ‘false information’ and effectively re-introducing criminal defamation in Kenya, provides:
“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…’
Contravening this provision attracts disproportionate civil and criminal sanctions, including a maximum fine of 5 million shillings (USD 45,943), imprisonment of up to 10 years, or both. In 2020, ARTICLE 19 Eastern Africa documented a number of issues with the provision. It found that Section 23 of the CMCA:
a) effectively re-introduced criminal defamation in Kenya, revealing that Kenyan legislators contravened the judicial pronouncement in the Jacqueline Okuta case. Criminal defamation provisions, much like the invalidated Section 194 of the Penal Code, are hinged on criminalising any damage to the reputation of a person. In 2002, UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression noted that ‘criminal defamation is not a justifiable restriction on freedom of expression and called for the abolition of all criminal defamation laws, and their replacement, where necessary, with appropriate civil defamation laws’;
b) led to the targeted intimidation, harassment and arrest of more than six Internet users who either (i) created and uploaded online content commenting on Kenya’s political situation and detailing corruption scandals or (ii) uploaded posts countering the government’s official COVID-19 narrative. These individuals include bloggers, editors, citizen reporters, content creators, and politicians; and
c) was arbitrarily misused by one arm of the National Police Service, namely the Directorate of Criminal Investigations (DCI). We documented instances where allegedly offending posts and/or websites have been pulled down and/or temporarily disabled whilst individuals were in the DCI’s custody. Individuals who were in DCI custody told ARTICLE 19 Eastern Africa that the DCI officers placed direct pressure on them to either edit the content of articles or pull-down articles, in their individual capacity or via website administrators. Other individuals were directed to ‘desist from sharing any coronavirus related information’ on social media handles or ‘risk being re-arrested’ and having bond terms cancelled.
ARTICLE 19 noted that restricting freedom of expression on the basis that the information shared is “false” is not a legitimate interest under international human rights law. This amounts to the creation of a legal “duty of truth” which, in turn, limits the free flow of information. Permitting States to decide what is ‘true’ or ‘false’, as illustrated above, sanctions state-sponsored censorship and state-controlled information. Notably, the sharing of “false information” serves a social purpose, as demonstrated by the creation and publication of parodies, which falls squarely in the remit of creative and artistic expression.
The CMCA’s Unending Days in Court
Since 2018, concerned stakeholders have challenged the CMCA, both on the process of its enactment and the substance of some provisions in the Act. In the petition lodged at the High Court by the Bloggers Association of Kenya (BAKE) and supported by ARTICLE 19 Eastern Africa, 26 provisions of the Act, including sections 5, 16-17, 22-24, 27-29, 31-41, and 48-53, were challenged for threatening the rights to expression, media freedom and privacy. During the pendency of the matter in court, the provisions were suspended and could not be used to arrest and charge people.
Unfortunately, on February 20, 2020, Justice Makau dismissed the petition, declaring that the 26 provisions were constitutional and the Act was valid in its entirety. Attempts by the Law Society of Kenya to stay the orders of the High Court and continue the suspension of the 26 provisions while awaiting the judgement of BAKE’s appeal failed.
In a different petition by the Senate against the National Assembly, the validity of 23 laws including the CMCA was challenged for failing to abide by the procedural and constitutional requirements for the adoption of laws. The Speakers of both Houses must first establish whether a bill is one concerning counties, and, if in the affirmative, the bill should be deliberated on by the two Houses. In October 2020, the High Court declared the CMCA together with 22 other laws, ‘unconstitutional, thus null and void’. However, the order nullifying these laws was suspended for 9 months to give both houses an opportunity to regularize the laws. The nine-month period lapses in July 2021.
These pronouncements have effectively rendered the CMCA fully operational, which explains the spike in the number of arrests and charges targeting journalists, media practitioners, students, and online users generally. Many individuals have been threatened or charged with the ‘publication of false information’ provision, as enforcers have targeted content that is critical of the government, politicians, high-profile individuals or content which exposes corruption. Influential citizens have also used the CMCA as a tool to harass content creators and bloggers.
While we are cognizant that cybercrimes have affected Kenyan legislators and parliamentarians, and that the CMCA contains some provisions that are necessary to combat those crimes, the protection of the reputations and needs of a select few cannot trump the protection of human rights. Civil actions are more appropriate than are criminal sanctions due to the extraordinary potential the latter has in stifling free speech in a free and democratic society.
Despite a need to update the Defamation Act, any person may still invoke it to protect their reputation. For example, the Defamation Act provides legal persons with the ‘right of reply to any factual inaccuracy affecting them which has been published in a newspaper and which damages one’s character, reputation or good standing.’ The law also provides protection against slander which affects one’s official, professional or business reputation and title, amongst others.
Attempts to Expand the CMCA
We will now examine the amendments that Hon. Aden Duale announced in March 2021 to legislate morality and expand the CMCA provisions concerning pornography.
In Kenya, “legislating morality” has been equated with “legislating citizens’ private consenting behavior,” often around matters regarding sexuality and the consumption of pornographic content. As a people who profess multiple religious belief systems and to whom the terms “family values” and “tradition and custom” carries societal weight, it is not uncommon to be bombarded with rhetoric that blurs the distinction between public and private morality under the guise of “protecting children.”
Pornography: To What Extent Can We Legislate Morality?
In its current state, the CMCA is riddled with disproportionate content-related offenses that are vague, ambiguous, and incompatible with international law as they permit the silencing of legitimate expression. Despite this, Duale recently announced that he was going to introduce amendments to the CMCA to “ban pornography” ostensibly to “protect our children.”
The CMCA defines 'pornography’ as “the representation in books, magazines, photographs, films, and other media, telecommunication apparatus of scenes of sexual behaviour that are erotic or lewd and are designed to arouse sexual interest.” The broad definition bestows wide discretion upon law enforcement officials to subject parties including hawkers peddling Mills and Boon novels, anyone producing, distributing or watching Gengetone videos, and even individuals in the creative and artistic communities who use nudity and depictions of sex to express their artistic, journalistic, and academic freedoms, to the law.
Attempts to expand pornography restrictions in the CMCA are not new. During deliberations on the bill, stakeholders objected to general pornography restrictions and pushed solely for the criminalization of child pornography. As indicated in Section 24 of the CMCA, legislators agreed that providing for narrow, rather than general, restrictions on pornographic content was consistent with international law.
Hon. Aden Duale actively participated in the deliberations on the bill at the National Assembly level, but was unsatisfied with the ultimate outcome. In fact, Duale still continues to push for more State powers capable of supervising the things Kenyans do and the content they watch in the confines of their own bedrooms. Duale’s persistence on the matter raises a few age-old questions: who determines morality in Kenya? Is it the role of society, the legislature, or the judiciary? Where do we draw the line when laws and proposals attempt to interfere with our individual liberty and freedoms? Is pornography a cause or effect of our innate sexual thoughts, desires, and interests?
Even before this amendment is tabled in Parliament, ARTICLE 19’s stance remains: we have challenged, and will continue to challenge obscenity laws that are based on eminently subjective definitions and rely on the “gut-feeling” and singular traditions (religious, philosophical, or social) of the government of the day.
Under international law, pornography is not one of the types of expression that must be prohibited, unlike child pornography which is expressly prohibited under the United Nations Convention on the Rights of the Child, and the 2000 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Any restrictions limiting the right to freedom of expression must be guided by the national constitution and international law. The United Nations Human Rights Committee affirmed that any restrictions on content which rely on the “protection of public morals” or the “public decency” arguments must be based on a broad, rather than singular, understanding of what “public decency” and “public morals” means. These restrictions must also be subjected to the tests of legality, legitimacy, proportionality, and necessity.
In closing, even if a State opts to generally prohibit pornography, expression need not be criminalized. Criminalization is reserved only for prohibited speech which satisfies a high threshold permitting restrictions on the right to freedom of expression.
In the next part of this “Gagging Free Speech” series, we will examine the Films and Stage Plays Act (CAP 222) and the string of abuses and violations of free speech that have been meted out before and during Ezekiel Mutua’s tenure at the Kenya Film and Classification Board.
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.