[kictanet] BAKE condemns the arrest and intimidation of Kenyans online

[Ephraim Percy Kenyanito]

Dear Listers, Jane and Ali,

It is very unfortunate to hear of these case and arrests over last week and
the weekend.

What do you think is the best strategy for us to work together to challenge
the constitutionality of these provisions of the 2013 law; "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."

In my opinion, this provision is vague and in contravention with Customary
International Law, I refer to *The Sunday Times v The United Kingdom* where
the European Court of Human Rights stated that the law must be of
‘sufficient precision to enable the citizen to regulate his conduct.’

In December 2014, the African Court on Human and Peoples’ Rights ruled that
imprisonment for defamation violates the right to freedom of expression
while criminal laws should only be used in restricted circumstances. The
Court ordered Burkina Faso to change its criminal defamation laws. Though
this case was about criminal defamation, the principle might be interpreted
to be the same regarding criminal restriction of free speech:
http://www.mediadefence.org/news/african-court-delivers-landmark-ruling-criminal-libel

In May 2015, In its first judgment on free speech, the East African Court
of Justice ruled that restrictions on the press imposed through Burundi’s
2013 Press Law violate the right to press freedom and the right to freedom
of expression. (
http://www.mediadefence.org/news/east-african-court-condemns-burundi-press-restrictions
)

I think it is that time that we need to brainstorm the best strategy for
challenging these provisions in the Kenyan courts and maybe an appeal at
the EAC and AU level as from December 2014, they are very interested to set
precedent in this area.

Please see something, I wrote on my personal blog at the beginning of 2014
regarding these laws:
https://thediaryofaglobalcitizen.wordpress.com/2014/03/04/lets-get-real-about-kenyan-media-laws/

​P.S- I have copied Donald Deya from the Pan African Lawyers Union (PALU)
who acted on behalf of the Burundi Journalists’ Union, and Henry and Riva
from Article 19 given their experience litigating such cases and MLDI’s
Legal Director Nani Jansen given their experience with the Burkina Faso
case.

--
Best Regards,

*Ephraim Percy Kenyanito*
Sub-Saharan Africa Policy Analyst
Access Now | accessnow.org

tel: (+254)-786-191-930/ (+254)-751-804-120
@ekenyanito
PGP: E6BA8DC1
Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1

*Subscribe *to the Access Now Express
<https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on
digital rights
*Sign up* for our action alerts <https://www.accessnow.org/campaign/>

On 25 January 2016 at 12:03, Ali Hussein via kictanet <
kictanet at lists.kictanet.or.ke> wrote:

> Jane
>
> Thanks for sharing. This paragraph in the article stands out:-
>
> "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."
>
> So sending a message that causes annoyance, inconvenience or needless
> anxiety is now a criminal offense?
>
> If we continue to be intimidated by this then I fear most listers on this
> list have been offenders many times over.
>
> As a country we need to review how we engage and of course decency,
> decorum and etiquette should be foremost in our minds when we post on
> social media. The question is how do we deal with supposed offenders. And
> what measurement do we use?
>
>
> *Ali Hussein*
> *Principal*
> *Hussein & Associates*
> +254 0713 601113 / 0770906375
>
> Twitter: @AliHKassim
>
> Skype: abu-jomo
>
> LinkedIn: http://ke.linkedin.com/in/alihkassim
> <http://ke.linkedin.com/in/alihkassim>
>
> Blog: www.alyhussein.com
>
> "Discovery consists in seeing what everyone else has seen and thinking
> what no one else has thought".  ~ Albert Szent-Györgyi
>
> Sent from my iPad
>
> On 25 Jan 2016, at 11:34 AM, Jane Muthoni via kictanet <
> kictanet at lists.kictanet.or.ke> wrote:
>
> Hello,
>
> This is a statement BAKE has released on the recent arrest and prosecution
> of Kenyans online. Read more here:
> http://www.blog.bake.co.ke/2016/01/24/bake-condemns-the-arrest-and-intimidation-of-kenyans-online/
>
> ----
>
> Kind regards,
>
> Jane Muthoni | Administration Manager, Bloggers Association of Kenya
> (BAKE)
>
> *T: 0733522229, 0704090471* | *personal - *0720 800927
> e: muthoni at bake.or.ke w: bake.co.ke | b: blog.bake.co.ke
> <http://www.blog.bake.co.ke/>
>
> skype: muthoni.gachango | twitter: <http://twitter.com/uQweli> @cheekynoni
> <http://twitter.com/cheekynoni>
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20160125/fe4b8550/attachment.htm>