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

Mon Jan 25 20:24:38 EAT 2016

Great to hear that Henry, Riva (and the amazing team at Article19) have
this covered.

Looking forward to the court outcome.

--
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 17:31, Victor bwire <vicbwire at gmail.com> wrote:

>
> 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
>>
>> *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 <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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>
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