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

Thu Dec 6 10:47:53 EAT 2012

Thanks Henry, especially for the policy. I like the six prong test, wish it
could be applied to some of the incitement cases, maybe that would be a
great help to the inadequacies of the National Cohesion and Integration
Act. I like the point that we need to prevent incitement in all forms ,
sometimes we focus too much on politics then hate on everyone who is
different from us.
And to consider other remedies , other than criminal , would also be of
advantage in our society. It would actually be poetic justice for some of
our radio presenters to have to correct/apologise for some of their
derogatory speech eg towards people of different orientation etc.

That said, I still think that the time left before elections is so short
and that drastic measures, such as limiting political coverage need to be
taken.

2012/12/5 Henry Maina <henry at article19.org>

> 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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> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
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> KICTANetiquette : Adhere to the same standards of acceptable behaviors
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>
> --
> Victor Kapiyo, LL.B
>
> ====================================================
> “Your attitude, not your aptitude, will determine your altitude” Zig Ziglar
>
>
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> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
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>
>
> --
> Grace L.N. Mutung'u (Bomu)
> Kenya
> Skype: gracebomu
> Twitter: @Bomu
> Website: http://www.diplointernetgovernance.org/profile/GraceMutungu
>
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> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>
>
>
> --
> Andrea Bohnstedt<http://ke.linkedin.com/in/andreabohnstedt>
> Publisher
>
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> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>
>
>
> --
> Regards,
>
> Mark Mwangi
>
> markmwangi.me.ke<http://markmwangi.me.ke><http://markmwangi.me.ke>
>
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> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>
>
>
> --
> Dr. Warigia Bowman
> Assistant Professor
> Clinton School of Public Service
> University of Arkansas
> wbowman at clintonschool.uasys.edu<mailto:wbowman at clintonschool.uasys.edu>
> http://democratizingegypt.blogspot.com
> -------------------------------------------------
> View my research on my SSRN Author page:
> http://ssrn.com/author=1479660
> --------------------------------------------------
>
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> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>

-- 
Grace L.N. Mutung'u (Bomu)
Kenya
Skype: gracebomu
Twitter: @Bomu
Website: http://www.diplointernetgovernance.org/profile/GraceMutungu
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