We are concerned by the ‘Guidelines for Prevention of Dissemination of Undesirable Bulk Political SMS and Social Media Content via Electronic Communications Networks’ (download HERE) that were unveiled in late June, 2017 by the Communications Authority of Kenya (CA) in conjunction with the National Cohesion and Integration Commission.
The regulations are mainly directed at Mobile Network Operators, Content Service Providers, Mobile Virtual Network Operators and Social Media (which includes bloggers). In the preamble, CA claims that it consulted these stakeholders, including bloggers and social media service providers. However, BAKE, the premier organization bringing together bloggers in Kenya was not consulted.
BAKE is especially concerned that the guidelines seem to ignore the High Court’s decision in Geoffrey Andare v Attorney General & 2 others  eKLR case which among other things determined that the Kenya Information and Communications Act and the CAK in extension cannot impose sanctions on entities it does not license. As such, Part II of the guidelines that purport to regulate content generated under the banner of Social Media (persons such as bloggers and online users) is outside the powers and province of KICA and the Communications Authority of Kenya.
Apart from the above glaring discrepancy, most of the other provisions in the regulations are blatantly unconstitutional for the following reasons.
1. The Guidelines invents its own limitations to freedom of expression that are outside what the constitution provides under Article 33 which confers all Kenyans the right to freedom of expression online and offline. In recognition that freedom of expression is not absolute, Article 33 (2) expressly provides that the right does not extend to propaganda for war; incitement to violence; hate speech; or advocacy of hatred. As such, the guidelines any limitations to these parameters.
Clause 1.1 of the Guidelines on Social Media (Part II) provides that all social media content shall be written using a “civilized language” that avoids a tone and words that constitute hate speech, “ethnic contempt”, and incitement to violence, “harassment”, “abusive” violence, defamatory or “intimidating”. We note that hate speech has a legal definition under the NCIC Act, however, concepts such as “civilised language”, “intimidating” have no objective and ordinary meaning.
In fact, in April, 2016, the High Court found Section 29 of the Kenya Information and Communications Act unconstitutional for this very reason in the Geoffrey Andare v Attorney General & 2 others  eKLR case. Judge Mumbi Ngugi noted that the Act provided no definition of the key operative words: “grossly offensive”, “indecent”, “obscene”, “menacing character”, “annoyance”, “inconvenience”, “anxiety”. She asserted that “the words are so wide and vague that their meaning will depend on the subjective interpretation of which officer (police, prosecutor, and magistrate).
As the law stands, for any restriction on freedom of expression to be legitimate, it must be clearly and concisely prescribed by law. The good judge also stresses that new laws should not be introduced simply because they deal with a new mode of communications. Hate speech that is uttered on radio, written on blackboards, caricatured or published in books remains hate speech. There is no special connotation if it is published online.
2. Regulation of Content under Clause 2 of Part II is problematic because it attempts to direct and mould social media users and bloggers free expression. Sub-clause 2 purports to require that all comments shall be polite, truthful and respectful. We are strongly opposed to this impossible standard because social media is a strong tool where social ills, corruption, abuse of power, consumer protection and exploitation is discussed. We contend that politeness and respect cannot be dictated by the CAK and NCIC.
3. Clause 2 (1) provides that Correct identification is required when publishing political messages. BAKE is gravely concerned because this provision is an affront to the right to privacy and the right to freedom of expression.
Anonymity is a key concept in the protection of freedom of expression as well as the right to privacy. At its simplest, anonymity is the fact of not being identified and, in this sense, it is part of the ordinary experience of most people on a daily basis, e.g. walking as part of a crowd or standing in a queue of strangers. In this way, an activity can be anonymous even though it is also public.
In this sense, anonymity not only protects the freedom of individuals to communicate information and ideas that they would otherwise be inhibited or prevented from expressing, but also protects the freedom of individuals to live their lives without unnecessary and undue scrutiny.
4. The fact that the regulations propose that a messages and content be swung by the NCIC to ensure that the content is not hate speech or what is considered problematic speech under Clause 2(5) suggests that it sets up a system of prior censorship or restriction. International consensus is that prior censorship by any state body is a serious infringement on free speech. Prior censorship poses special dangers to freedom of expression.
BAKE therefore calls on the Communications Authority of Kenya to immediately withdraw these guidelines, especially Part II because the authority has no mandate to regulate content of bloggers and social media in general as per the Andare Case and in future, to ensure meaningful public participation in order to bring forth laws, regulations and guidelines that are acknowledged and owned by all stakeholders. Moreover, international best practice and constitutional provisions on freedom of expression must be adhered to during this process.