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

[Ephraim Percy Kenyanito]

 Yes it is true that freedom of speech/ media freedom is not absolute as
there is a 3 part test
((i) be provided by law,
(ii) pursue a legitimate aim, and
(iii) be necessary in a democratic society, in order to be permissible
under Customary International Law, however, the law must be of ‘sufficient
precision to enable the citizen to regulate his conduct.’ My contention is
that section 29 of the Kenya Information and Communications (KICA) Act read
with the Penal Code and certain provisions of Media Act can be used to
prosecute anything.

Please see my 2014 analysis here:
https://thediaryofaglobalcitizen.wordpress.com/2014/03/04/lets-get-real-about-kenyan-media-laws/

--
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

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On 25 January 2016 at 15:11, Waithaka Ngigi <ngigi at at.co.ke> wrote:

> Hi,
>
> Would like to ask, but don't those laws have a role to play in limiting
> propagation of offensive media?
>
> If anyone is arrested for sharing on social media, grossly photos of our
> dead soldiers; soldiers who are our brothers, sisters, husbands, wives,
> sons & daughters‎, then the fine and prison terms should be tripled from
> what they are as per the current law.
>
> Freedom comes with responsibility, and in this and other similiar cases
> the latter has been completely pushed aside at the altar of freedom.
>
> Waithaka Ngigi
>
> Alliance Technologies
> www.at.co.ke
> *From: *Ephraim Percy Kenyanito via kictanet
> *Sent: *Monday, January 25, 2016 2:53 PM
> *To: *Ngigi Waithaka
> *Reply To: *KICTAnet ICT Policy Discussions
> *Cc: *Ephraim Percy Kenyanito; Nani.Jansen at mediadefence.org;
> info at mediadefence.org; Jane Muthoni; ddeya at lawyersofafrica.org; Donald
> Deya
> *Subject: *Re: [kictanet] BAKE condemns the arrest and intimidation of
> Kenyans online
>
> 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
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>
> 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>
>>
>>
>>
>
>
>
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