Even without shutdowns, government can still undermine internet freedom

What you need to know:

  • The study also noted that state actors had found new charges such as "undermining the authority of a State Officer" as provided by Section 132 of the Penal Code
  • Utterances of obvious hate speech by high-ranking political figures were not dealt with as swiftly as those suspected for spreading hate speech through blogs or social media.
  • Ezekiel Mutua's enthusiastic requests to clamp down on Netflix and pull down same-sex content video from YouTube come to mind and are yet to be resolved.

The annual Forum on Internet Freedom in Africa takes place in Kampala this week. It aims to promote online freedoms by taking stock of how various laws and actors have shaped them in African countries.

Previous Internet shutdowns in Tunisia, Uganda and Egypt were recently joined by Zimbabwe as state actors attempted to clamp down on citizens’ freedom to either demonstrate or express dissenting views.

Much closer at home, a Tanzanian lecturer was charged in court for allegedly abusing President Magufuli through his WhatsApp account. So what is the state of Internet freedom in Kenya?

KICTAnet did a study that will be formally tabled at the forum later in the week. Some of its highlights describing the state of Internet freedoms in Kenya are shared below.

One key finding was that the number of bloggers and other online activists being prosecuted by the state had dropped significantly following the successful petition against section 29 of the Kenya Information & Communication Act of 2013 (KICA 2013).

Many bloggers had been charged with "misuse of a telecommunication system" - as provided for by Section 29 of the Kenya Information and Communications Act 2013. This section was declared unconstitutional by a High Court judge following a successful petition by human rights groups.

The study also noted that state actors had found new charges such as "undermining the authority of a State Officer" as provided by Section 132 of the Penal Code, to deal with bloggers deemed to be crossing the thin line between free speech and abuse.

Another law that has been increasingly employed is the National Cohesion and Integration Commission Act (NCIC 2008), which deals with hate speech, particularly Section 13.

The report noted that utterances of obvious hate speech by high-ranking political figures were not dealt with as swiftly as those suspected of spreading hate speech through blogs or social media.

It further finds that the large number of prosecutions has resulted in very few convictions. This perhaps is an indication that the State’s intention is to have a "chilling effect" on the online communities rather than seek justice for the offended party.

The Kenya Film and Classification Board (KFCB) is also cited as a risk to Internet freedoms. In particular, KFCB chief executive Ezekiel Mutua's aggressive approach to protecting the Kenyan cyberspace from perceived morally corrupt content is mentioned.

His enthusiastic requests to clamp down on Netflix and pull down same-sex content video from YouTube come to mind and are yet to be resolved.

Whereas his approach has had mixed support, it is clear that his mandate originally focusing on traditional broadcast content needs to be reviewed or moderated in order to fit within the realities of online broadcasts.

The lack of a Data Protection Act is also highlighted, as were recent police vetting exercises that exposed the M-Pesa transactions of certain police officers. 

Whereas the exposure may serve to rid the service of corrupt policemen, the details around how their private M-Pesa records were accessed and subsequently shared with the public remains scanty.

This extends to a cited case where personnel operating public surveillance cameras are abusing the data collected, by monitoring citizen movements over a period of time for purposes of blackmail. 

In the absence of a Data Protection Act, electronic data collected by service providers will continue to be vulnerable, to the point where citizens may opt not to participate in online or offline activities.

The report covers many other matters, but these three demonstrate that Internet freedom can be curtailed without necessarily shutting it down.

State and non-state actors are using more covert ways, and the annual forum on Internet Freedoms in Africa goes a long way in bringing them to light.

Mr Walubengo is a lecturer at the Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @jwalu

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