We the Bloggers Association of Kenya (BAKE) take great exception to the increasing cases of intimidation through arrests and prosecution of Kenyans online. In the recent past, eight Kenyans have been arrested and held for questioning in what is turning out to be criminalization of civil matters.
Police have frequently used section 29 of the Kenya Information and Communications (KICA) Act (2009), as grounds for arrests and prosecution. Section 29, improper use of a telecommunication system, says that a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person; commits an offence and shall be liable on conviction to a fine not exceeding Ksh. 50,000 or to imprisonment for a term not exceeding three months, or both.
Yassin Juma was on 23rd of January 2016, arrested and held under the same section 29 of KICA Act. Yassin was held at the Muthaiga Police Station over posts he published on his social media accounts. The posts provided updates of the recent Kenya Defense Forces (KDF) attack in Somalia.
On 22nd of August, 2015, blogger Robert Alai was arrested by the Criminal Investigations Department (CID) officers for allegedly calling the family of President Uhuru Kenyatta land grabbers. Alai recorded a statement over claims that Kenyatta family grabbed land in Taita Taveta. The President had pledged during the 2013 General Elections campaigns that his family would allocate 2000 acres of land to squatters.
Anthony Njoroge Mburu alias Waime Mburu, who commentates on Kiambu County politics, was charged in a Mombasa court on Thursday 21st of January 2016 with publishing false information. He was charged with three counts of harmful publication contrary to section 66(1) of the Penal code. According to the charge sheet, he is alleged to have posted false words on social media in January 8th 2016 that were intended to cause harm to Charlotte Wangui, who heads Sea Cross Farm in Kwale. According to section 66(1) of the Penal code of Kenya, any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanor.
Patrick Safari, a prison warden, popular known as Modern Corps was also arrested on 21st January 2016 for posting various comments regarding the Al Shabaab attack at the KDF camp in El-Adde, Somalia. He spent the night being interrogated and police retained his three phones and laptop after releasing him the following day. Safari generally provides security updates on his social media accounts.
Eddy Reuben Illah was arrested on 19th January 2016 and charged under section 29 of KICA Act. He was alleged to have shared images of what he alleged were Kenyan soldiers killed in an Al Shabaab attack on a WhatsApp group. Illah denied the charge and was remanded in custody pending the hearing of his case on 9th February 2016.
Elijah Kinyanjui was arrested on 12th January 2016 and held for 12 hours for allegedly sharing a story that depicted alleged Nakuru Governors’ daughter Brenda Mutanu in bad light in Nakuru Facebook and WhatsApp groups. Kinyanjui was alleged to have committed the crime on October 15th 2015. He was held under section 29 of the KICA Act.
Judith Akolo, a journalist with the Kenya Broadcasting Corporation (KBC), was on 5th January 2016 questioned by the Directorate of Criminal Investigations (DCI) for retweeting a comment. On 31st December 2015 she retweeted a post from Patrick Safari (@moderncorps) about a DCI advertisement of jobs within the department which was made public on deadline day (31st December 2015).
Blogger Cyprian Nyakundi has been arrested twice this month and held for more than 24 hours against the Constitutional requirement in Article 48. Article 48 is clear that an arrested person be taken before a court not later than 24 hours of being arrested. Nyakundi was detained after tweeting about a construction company that was linked to Mombasa Governor, Hassan Joho.
These are just cases that have come up recently. BAKE records that there are many other cases of the same nature of both intimidation and prosecution of online users.
“Article 33 of the Kenyan Constitution is categorical that every person has the right to freedom of expression, including the freedom to seek, receive, or impart information or ideas. The arrests of these online users do not reach the threshold for limitation of rights as enshrined in Article 33 (2). Thus these actions by the police are unconstitutional”, said BAKE chairman Kennedy Kachwanya.
Articles 33, 34 and 35 of the Constitution should not be abused at the behest of political goals. Where the limitations have to be exercised the spirit and letter of the Constitution has to be abided by law enforcement officers.
“We are particularly concerned by the increasing pattern of criminalizing civil matters. Defamation as most of these cases indicates are civil matters, which do not fall under the purview of police officers. This needs to stop forthwith,” added Kachwanya.
BAKE further calls for judicial officers to hasten the hearing and determination of a constitutional challenge to section 29 of the KICA Act. The case has been postponed several times with the new hearing date set for January 28th 2016. A speedy resolution of this case by the Human Rights and Constitutional division of the High Court will pave way for the release of many online users and bloggers, charged by this vague, unconstitutional provision.
As an organization, we have been conducting blogging and social media training around the country to sensitize citizens on the need for responsible use of online platforms. The trainings also include the law governing the internet in the country. We intend to continue with these trainings in areas that we have yet to cover so as to better inform the online public of their rights, freedoms and responsibilities.
For BAKE members, we offer legal support both directly and indirectly (through partners). Members should reach out whenever they need it. The partnerships we have created in the online space have shown willingness to help us protect and promote online freedoms and rights.