[kictanet] Under what conditions should we shut down twitter, internet, radio, TV in Kenya?

Wed Dec 5 17:18:04 EAT 2012

Thanks Warigia. I am happy to get further on conditions that must subsist before any shut down if need be but I note we must first have license conditions with each service provider or TV/Radio operator. There cannot be wholesome shut downs in a democracy like what we had in early 2008. It was illegal and illegitimate. This is when you look at it from the understanding that any prohibition of incitement  must conform to a three-part test of legality, proportionality and necessity. 

Regards

HENRY O. MAINA
DIRECTOR
ARTICLE 19 KENYA/EASTERN AFRICA
P O BOX 2653,00100
NAIROBI
TEL:+254 (20) 3862230/2
FAX:+254 (20) 3862231
EMAIL: henry at article19.org

________________________________________
From: Warigia Bowman [warigia at gmail.com]
Sent: 05 December 2012 04:47 PM
To: Henry Maina
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] Under what conditions should we shut down twitter, internet, radio, TV in Kenya?

Thank you Henry. It is great to hear from someone who actually works on Article 19. Fantastic!

On Wed, Dec 5, 2012 at 7:21 AM, Henry Maina <henry at article19.org<mailto:henry at article19.org>> wrote:
Dear listers,

I sincerely appreciate the ongoing discussions and their rigour. I must start by indicating that to the best of my knowledge no liberal democracy except USA lack laws or codes against hate speech. I hear Grace Mutung'u's propositions but a few riders may be necessary. I work for ARTICLE 19 which is the leading international human rights organisation on promotion and protection of freedom of expression. However, ARTICLE 19 does not hold absolutist views that any regulation of hate speech  violates the Constitution (especially Art 33,34,35) and damages free society.

We hold that hate speech should be regulated  as part of our commitment to human dignity, equality and inclusion and respect for all members of our society (including vulnerable minorities). ARTICLE 19 is not an organisation of free speech advocates who boast of despising what hate mongers (racists,ethnicists etc) say but is willing to defend to death their right to say it. We are a measured organisation that understands that freedom of expression is not absolute. It can and should be restricted in line with only permissible grounds under international human rights law. We have in mind Article 19 (3) of ICCPR and Article 20 of ICCPR.

The only bone of contention is that this regulation cannot be whimsical,ad hoc and subjective. It is because of the continued confusion globally that we as an organisation have for the last 2 years worked on developing a threshold of incitement test which we  officially launched on Monday 3rd Dec 2012. See the link  http://www.article19.org/resources.php/resource/3548/en/article-19-unveils-a-practical-guide-for-dealing-with-cases-of-incitement-to-hatred
In summary, the incitement test underscores the fact that there are many forms of speech acts that may be dangerous---abusive, uncouth, derogatory, inflammatory etc and that states must devise mechanisms to prohibit incitement to discrimination, hostility or violence.

The test also isolates the need for us to expand prohibited grounds on incitement and not just stick to ethnicity yet may Kenyans continue to safer hate speech on the basis of their sex, race, disability, sexual orientation,  medical conditions, whether born in wedlock or outside wedlock etc. Key for the incitement test is the context; the speaker; the intent; the content; the extent and magnitude of the expression; and the likelihood of harm occurring,including its imminence. It is within the 5th test of extent and magnitude that the current discussion but be located. If a speech act is made in public and has a likelihood to be disseminated widely then we must teach ourselves how to mitigate its likely effects. Such efforts would be how to ensure it is limited, not unnecessarily repeated etc.

Political expression may appear divisive but we must ask ourselves why is it so in competitive politics and how may we hold politicians accountable for their speech acts first before beginning to fathom shut downs as that will always be a scapegoat. The problem shall always persist.

I remain happy and available to share how we may balance the right to freedom of expression and also the need to ensure human dignity for all.
Regards

HENRY O. MAINA
DIRECTOR
ARTICLE 19 KENYA/EASTERN AFRICA
P O BOX 2653,00100
NAIROBI
TEL:+254 (20) 3862230/2<tel:%2820%29%203862230%2F2>
FAX:+254 (20) 3862231<tel:%2B254%20%2820%29%203862231>
EMAIL: henry at article19.org<mailto:henry at article19.org>

________________________________________
From: kictanet [kictanet-bounces+henry=article19.org at lists.kictanet.or.ke<mailto:article19.org at lists.kictanet.or.ke>] on behalf of Mark Mwangi [mwangy at gmail.com<mailto:mwangy at gmail.com>]
Sent: 05 December 2012 03:46 PM
To: Henry Maina
Cc: KICTAnet ICT Policy Discussions
Subject: Re: [kictanet] Under what conditions should we shut down twitter, internet, radio, TV in Kenya?

I think we are getting romantic about the internet and ignoring that it is just another communication medium like telephones, telegrams, letters,newspapers,smoke signals etc before it. Shutting down communication will only foster a black market where the same will be traded. It will be more expensive but it will exist. Information will flow, slower and more distorted but it will flow.

It is not impossible to track down hate speakers. No-one is an island. Someone always knows something. As was witnessed by the Rwandans during their genocide and closer home during the PEV, the efficacy of mass media fanning violence is very real. But the internet is different. It is not passive. Shutting down media houses is fine. Shutting down the internet is not.

On Wed, Dec 5, 2012 at 2:40 PM, Andrea Bohnstedt <andrea.bohnstedt at ratio-magazine.com<mailto:andrea.bohnstedt at ratio-magazine.com><mailto:andrea.bohnstedt at ratio-magazine.com<mailto:andrea.bohnstedt at ratio-magazine.com>>> wrote:
Grace, why would you argue that political coverage on TV/in the media can be less easily monitored than on the internet? If anything, media outlets have owners and employees and should have (yeah yeah, I know) control mechanism to check for libel, hate speech etc. On the internet, it's the Wild West - it's incredibly difficult to hold anyone to account. And you can take any TV or radio quote from a politician and play that back to him/her.

On 5 December 2012 10:51, Grace Mutung'u (Bomu) <nmutungu at gmail.com<mailto:nmutungu at gmail.com><mailto:nmutungu at gmail.com<mailto:nmutungu at gmail.com>>> wrote:
Sometimes I feel as if Kenya is a unique case that requires tailored interventions. For instance, with all due respect to Article 19, and while we should never blanket shut down twitter etc, there should surely be a fast response mechanism to inciteful speech online as well as broadcasts. eg a Commissioner of Assize or a dedicated court so that people do not continue to spew, retweet and disseminate hate speech.

At the moment, there are already not necessarily hateful or incitement speech but (clever)statements that are building up collective psyche towards hardline positions. How long should we leave such statements to ethics? Shouldn't we just black them out? The argument that we should combat hate speech with massive "love" speech it seems, will not work in Kenya unless "love" speakers get the resources that hate speakers have. I get so concerned for Kenya every time I watch 7pm news......Can't something be done to stem this clever speech that most people would agree is likely to lead to hardline positions and God forbid, violence....For example, cant media houses limit the duration/coverage of political rallies so that the parties have to find other avenues for their messages eg Internet where their content can be monitored by we the people (without the risk of the parties/candidates saying, "I was misquoted")

And most importantly, especially for March elections, there needs to be some regulation of media reporting election results. For example having media houses refrain from predicting or calling it (however obvious it may seem)
And is current legislation sufficient? Maybe not (at least not the National Cohesion and Integration Act) . And the circumstances are not helping, since defining cases are yet to concluded/have been withdrawn...

2012/12/5 Victor Kapiyo <vkapiyo at gmail.com<mailto:vkapiyo at gmail.com><mailto:vkapiyo at gmail.com<mailto:vkapiyo at gmail.com>>>
Listers,

I think the focus should not be on shutting down the Internet, tv or radio stations hence inconveniencing the entire nation and infringing everyone's constitutionally guaranteed rights while at it.

There is sufficient legislation to deal with hate speech and related offences and media enterprises that violate the law, hence the responsible regulatory institutions should be focusing on how prepared they are to implement the law by investigating and arresting the specific offenders. Indeed before such drastic action is contemplated, the consequences need to be borne in mind.

Victor

On 5 December 2012 06:13, Baiju Shah <baiju at tele2media.com<mailto:baiju at tele2media.com><mailto:baiju at tele2media.com<mailto:baiju at tele2media.com>>> wrote:
There must be a framework within the Kenyan law that outlines what could be done and not done?

If there is a violation it is the right of the authorities either deal with the immediately or the platform provider can comply to the law by self governing as they do for all aspects in running their businesses. E.g. Likes Google and Twitter have created in house expertise / legal capability to build into their systems what one can do and not do by geo location.

The governance / audit in Kenya now should be do they comply with our laws? If not then they should be given 2/3 months to include a layer of business rules that will include for the system / platform provider to comply, where is KEBS :)

Best Regard,

Baiju Shah
Tele2media Ltd
Telemedia Africa Ltd
Tel. +44 7887691570<tel:%2B44%207887691570><tel:%2B44%207887691570>
email: baiju at tele2media.com<mailto:baiju at tele2media.com><mailto:baiju at tele2media.com<mailto:baiju at tele2media.com>>

On 5 Dec 2012, at 04:46, McTim <dogwallah at gmail.com<mailto:dogwallah at gmail.com><mailto:dogwallah at gmail.com<mailto:dogwallah at gmail.com>>> wrote:

On Tue, Dec 4, 2012 at 7:43 PM, Daniel Waweru <daniel.waweru at gmail.com<mailto:daniel.waweru at gmail.com><mailto:daniel.waweru at gmail.com<mailto:daniel.waweru at gmail.com>>> wrote:
> One case, at least, strikes me as obvious: if you have good reason to think
> that broadcasting material would lead to a direct threat to the safety of
> some other person, then there's good reason not to broadcast it.

That is true, but that is an editorial judgement on the part of the
media house/radio station/newspaper.

If they violate the law, then there MUST be consequences.

If there's
> a means of communication which persistently puts out stuff that meets that
> standard, then there's a pretty good case for shutting it down.

if it is a single radio station for example, then yes, a court could
find them in violation of the law and order them to cease.

That doesn't mean ALL radio stations should be shutdown.

that's is my 2 bob anyway.

--
Cheers,

McTim
"A name indicates what we seek. An address indicates where it is. A
route indicates how we get there."  Jon Postel

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