The Kenyan state has a dark history of cracking down on every piece of literature it considers a threat to the interests of the ruling class
By Davis Thuranira
Satirical memes act as the de facto symbol of national unity in Kenya. Even the most unobservant passers-by will appreciate this reality as long as they have a smartphone with active social media applications. They will also not hesitate to appreciate that Kenyan memes are not merely memes but artistically crafted expressions of humour, twisted with political satire and stoicism. Having this sphere remain untouched is the apparent wish of many enthusiastic netizens, but is it possible in the Kenyan context? Nevertheless, the central concern is how limitations interact with the freedoms of ‘meme lords’, the media, whistle-blowers, bloggers, civil society, academics, and political opponents.
Like most of its peers in the region, the Kenyan state has a dark history of cracking down on every piece of literature it considers a threat to the interests of the ruling class. During the first four post-independence decades, some brave literary minds, including novelists, cartoonists, playwrights and poets, had to down their quill and pour the ink or run into exile for speaking the truth. We cannot help but agree with renowned Philosopher Baron de’ Montesquieu on the close relationship between authoritarianism and the suppression of free speech. He despises despotic rulers for their unforgivable inability to learn that satire works for them as it gives their oppressed subjects the patience to suffer and laugh at their own misery.
There is no contention that the freedom of expression guaranteed under Article 33 of the Constitution of Kenya 2010 is limited. Likewise, the freedom of the media is not absolute but protected to the extent that its enjoyment does not amount to propaganda for war, incitement to violence, hate speech and advocacy for hatred. It is worth noting that defamation is not one of the limitations for the freedom of expression listed under Article 33(2) of the Constitution. Article 33(3), however, requires every person to respect the rights and reputation of others in the exercise of their freedom of expression. This provision has been employed severally in courts and other debate circles to defend the constitutionality of criminal defamation.
When criminal defamation was declared unconstitutional in the Jacqueline Okuta case for being a disproportionate limitation and an affront to free speech, celebrities, especially politicians, must have sighed with relief. Manoeuvring the murky waters of politics had already become difficult for politicians whose careers depend on attacking the reputation of others. They saw Justice Mativo’s progressive judgement as a license to go lethal on their opponents without caring about the resulting harm. Of course, victims can invoke the consequences available in civil law, but all some of those mouths fear are arrests, criminal investigations and prosecution. The landmark declaration also saved the opposition from the agony of defending malicious defamation charges initiated to discourage their scrutinisation and checking of the government’s excesses.
It would be fallacious to assume that all celebrities were impressed with the declaration of criminal defamation as unconstitutional. The abuse of police and prosecutorial discretion in pursuit of matters extraneous to the goals of the criminal justice system is a common problem ailing our legal system. This ugly menace had been manifested in special ways before Justice Mativo’s trendsetting declaration. Section 194 of the Penal Code would often be invoked to justify the use of police to protect reputation when, deep inside, it was a move to crash dissent, criticism or any efforts which expose their suspicious actions to the public limelight. This offence was actually the perfect net trap for the small fish with nothing to offer for compensation in case of successful defamation lawsuits.
When all these myriad factors are considered, we are left pondering the fate of free speech on social media, wondering what the distinction is between libel published using traditional means and cyber libel. The High Court, in the Bloggers Association of Kenya case, tried to answer this question. When faced with a petition to declare the offence of criminal defamation in the Computer Misuse and Cybercrimes Act 2018 (CMCA 2018) as unconstitutional, Justice Makau observed that the distinction is made “…in regard to the speed with which defamatory statements posted in cyberspace, facilitated by one-cluck options offered by the networking site and the quickness in the dissemination of such reactions to other internet users all over the world… Using the technology in question, the publisher can evade identification, reach a far wider audience, and cause greater harm…” Ultimately, the Learned Judge disagreed with the Petitioners on the constitutionality of cyber libel.
It cannot be gainsaid that Justice Makau’s fears rhyme well with those of the legislature. Social media comes with unlimited freedom, brazen audacity and aggressiveness. The level of civic engagement and participative discussions on social media has risen beyond what would be initially considered armchair activism. It is now possible to organise a huge rally without requiring a prior police permit. Imagine how celebrities feel when basking on the Coast over the weekend and suddenly come across an unexpected satirical whistle-blowing or post on social media about them with thousands of engagements, including likes and savage comments. Perhaps this challenge presents the perfect chance to ask whether such imaginations and fears are motivated by personal factors or public interest concerns. How does the protection of individual reputation amount to an issue of public interest to warrant the deployment of the criminal justice system, yet there are remedies available to individuals in the tort of defamation?
Recently, and especially during the anti-government protests, there has been a crackdown on information alleged to be fake news, misleading or defamatory published on social media. Several well-known bloggers and content creators were arrested and charged with ridiculous offences, including those in the infamous Computer Misuse and Cybercrimes Act 2018. To be fair, considering Justice Mativo’s judgement concerning Section 194 of the Penal Code, there are certain instances where the limitation of free speech is desired. Nonetheless, applying the noscitur a sociis doctrine, the erudite judge explained that all the exemptions under Article 33(2) of the Constitution seek to protect the public interest only. Therefore, it was concluded that the defamation of private persons is not contemplated under the said provision as it aims to protect personal interests whose rightful avenue is the civil tort of defamation.
It is not yet adequately clear why the two judgements pointed in opposite directions. The most notable justification for upholding cyber libel was the contemporary challenges posed by communication technology and social media usage. The other key reason for the distinction is that unlike Section 194 of the Penal Code, the CMCA 2018 prescribes the mens rea for the various offences it establishes. It is also arguable whether this view really reflects the true position. For the avoidance of doubt, Section 194 has words associated with the mental element of a crime. They include “unlawfully” and “with intent”, as it actually reads that “any person who unlawfully…publishes any defamatory matter, concerning another person, with intent to defame that other person…” On the other side, the mens rea under Section 23 of the Computer Misuse and Cybercrimes Act 2018 applies to the public interest concerns contemplated under Article 33(2) of the Constitution but extends the punishment to any person who “knowingly publishes information that is false….which is likely to discredit the reputation of a person…” In any event, having both elements of a crime does not sanitise the invalidity of excessive limitations that are unjustifiable in an open and democratic society, nor does it erode the Court’s power to declare it invalid.
Despite Justice Mativo’s progressive judgement, the CMCA 2018 was enacted with its Section 22 indirectly replacing criminal defamation, which had been declared unconstitutional less than a year earlier. This legal provision criminalises the intentional publication of false, misleading or fictitious data simply because the person doing so intends to make others believe in its authenticity. It sparks endless questions in everyone’s mind. Did the legislature mean that the Constitution of Kenya 2010 sets truth as a prerequisite condition for the enjoyment of free speech? In further perspective, which person is responsible for determining and at what point in the criminal justice process the information published is false, misleading or fictitious. Which criteria do the police use to distinguish between more civil than criminal complaints?
All said and done, netizens are quite indifferent to the distinction between cyber libel and libel published on other platforms. Lawyers and judges had a good chance to use Latin jargon, philosophical expositions and a wide array of analogies to demonstrate the difference between the two offences. Amidst all these deliberations, most netizens, including bloggers, activists, academics and political commentators, are left shrouded in darkness, wrestling with fears that any of their simple posts might go viral and then reach a man powerful enough to trigger the machinery of the criminal justice system. The sustenance of cyber libel in a world with fast-advancing communication technology is calculated to instil fear in the masses and silence their voices. This move is akin to fighting technology, without knowledge that it is so aggressive and innovative that it can surmount such weak obstacles.
In light of the foregoing, the crackdown on social media posts alleged to be, inter alia, defamatory, fake or misleading, coupled with the criminalisation of any kind of defamation, whether cyber libel or not, is a grave affront to free speech worth a revisit. Bearing in mind that the freedoms of expression and media serve as the foundational pillars for the defence and preservation of all other rights, their suppression, according to Montesquieu, signifies that “there is an end not only of liberty but even of its very shadow.”
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