Kenya's expanding digital space and the limits of free expression

 

Kenya has made significant strides in expanding the space for citizen engagement with government at both the local (county) and national levels. This expansion has been driven by the proliferation of platforms such as X, Facebook, YouTube, Instagram, TikTok, and WhatsApp. These platforms have not only empowered individuals and groups to become publishers in their own right but also inspired a new wave of citizen journalism.

Some social media users, activists, and bloggers have garnered followings that rival traditional news networks, with some attracting millions of followers rivalling the reach of national television stations, radio, and newspapers. However, it’s important to note that while legacy media is subject to regulations under various laws, social media remains largely unregulated, giving rise to a host of challenges regarding free expression and responsibility.

The court has played a pivotal and reassuring role in interpreting and upholding the constitutional right to freedom of expression. They have consistently emphasised the importance of the right to seek, receive, and impart information in an open and democratic society. The Constitution explicitly outlines protections for free expression and a free press while also setting clear limits on hate speech, propaganda for war, incitement to violence, and advocacy for hatred based on grounds such as ethnicity, gender, and religion. The Constitution also reminds citizens that, in exercising their rights, they must respect the rights and reputations of others.

The courts have made several landmark rulings that reinforce these principles. For example, criminal defamation was declared unconstitutional, with the courts arguing that forcing a journalist to undergo criminal proceedings for defamation was an unjustifiable limitation of free expression. The courts also struck down laws that criminalised criticism of public officials and the use of licensed telecommunication systems to send menacing messages, noting that these laws were too vague to meet the constitutional requirement that limitations on rights be clear and precise. This year, publishing content with “subversive intent” was declared unconstitutional for similar reasons. 

Despite the progress made in safeguarding freedom of expression, enacting the cybercrime law marked a significant regression for online speech. Sections 22, 23, and 27 of the Act criminalise the publication of false or misleading information, content intended to incite chaos or panic, and material that damages a person’s reputation or induces apprehension or fear of violence. Critics contend that these provisions effectively revive criminal defamation by penalising reputational harm and emphasise that vague terms like "apprehension or fear of violence" leave room for subjective interpretation by authorities. The penalties imposed under the Act are notably harsh, with fines ranging from Sh5 million to Sh29 million and prison sentences between two and 10 years. Additionally, the law has been criticised for positioning the State as the arbiter of truth by criminalising what it defines as "fake news," raising concerns about potential abuse in curbing free expression.

The courts initially suspended its enforcement when the Bloggers Association of Kenya (BAKE) and ARTICLE 19 Eastern Africa challenged the law. However, Justice James Makau later upheld the law. This decision disappointed many who believe that concerns about defamation should be addressed through civil law, as outlined in the Defamation Act, rather than criminal sanctions. The case is now on appeal.

The ongoing debate around this law highlights the tension between freedom of expression and the need to protect individuals from harmful content. Activists and citizens alike must understand that while freedom of expression is a fundamental right, it is not absolute.

Since the law’s enactment, its provisions have been applied primarily to target online speech by government critics, raising concerns about potential abuse. This underscores the need for a more balanced approach that protects both the rights to free expression and the reputations of individuals without giving authorities excessive power to stifle dissent.