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

Mon Jan 25 17:31:46 EAT 2016

Colleagues

Just picked this from another group discussion

In June 2015 ARTICLE 19 filed a case in the constitutional court
challenging Section 29 of the KICA Act . The ruling is being issued on 28
January.

Meanwhile see -
https://www.article19.org/resources.php/resource/38241/en/kenya:-intimidation-and-harassment-of-bloggers-reaches-new-high

Regards,

Patrick

On 25 Jan 2016 14:52, "Ephraim Percy Kenyanito via kictanet" <
kictanet at lists.kictanet.or.ke> wrote:

> 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
>
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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 <0733522229>, 0704090471 <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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