By Demas Kiprono
On April 19, 2016, Justice Mumbi Ngugi declared Section 29 of the Kenya Information and Communication Act (KICA) unconstitutional in a petition filed by Geoffrey Andare, an online user, and Article 19, an NGO that champions freedom of expression. She declared that the provision creating the offense of “misuse of a licensed telecommunications system” was incompatible with the Constitution and therefore could not be left to stand.
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The decision was timely, a huge win for freedom of expression in Kenya and an encouraging step towards respect for human rights, especially online. Within the past year, and especially the last few months, Kenyans had witnessed especially repressive use of the law against online users, bloggers and journalists.
Vague broad and unclear terms
One of the main reasons the law was struck down was that it was vague, and overly broad thus making its application unclear and overreaching. It made it an offense to send messages that were “grossly offensive”, “indecent”, “obscene”, “menacing”, “causing annoyance, inconvenience or needless anxiety” through a computer or handset. It was found to be in contradiction with Article 33 of the Constitution, which guarantees the right to freedom of expression regardless of medium: including the freedom to seek, receive, or impart information or ideas.
Any regulations based on terms such as “menacing” are quite problematic because they describe an emotional state, and in reality ought to line up with words like “hurt”, or “insulted”. But they are often used in a thoughtless way, as if “to menace” is a persistent and predictable state, like a broken limb, or a demolished house. We wrongly place such words with words such as “assaulted”, or “threatened”, or “molested”. We let them seem to mean an indisputable violation, instead of a subjective matter of culture, religion, persuasion or disposition.
Kenya Film & Classification Board
Enter the Kenya Film and Classification Board and its attempts to regulate and ban film content, including Netflix and adverts within Kenya. As its name suggests, the Board’s work begins and ends with classifying films. However, the Board has seen it fit to moonlight functions and include online content, parties, and advertising, including outdoor advertising.
The Board has fallen for the same misconception as Section 29 of KICA by trying to regulate very vague concepts without considering Article 33(2), 34(1) and Article 24 of the Constitution which stipulate that free expression and the media does not extend to hate speech; incitement to violence; advocacy for hatred; propaganda for war; and the vilification of others; and, when and how fundamental rights can be legitimately limited under the law.
The law also provides that the state shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalise any person for any opinion or view or the content of any broadcast publication or dissemination.
The KFCB, which is founded on the Films and Stage Plays Act, does not define concepts such as “national values” or “moral standards”, meaning that none of the notions relied upon would have a uniform meaning or interpretation among ordinary citizens; what is obscene to one may be normal to another.
Moreover, Ezekiel Mutua, the head of the Board, should stick to his lane and confine himself with classifying films and stage plays as the enabling law suggests, to enable parents decide whether or not children are allowed to view them. He has no say with regard to content or the creative process when developing advertisements.
I concede that international consensus has it that children have a legal right to be protected from all forms of exploitation and material that is likely to compromise their innocence. However, the Board is mandated to classify films and play acts to enable parents to prevent their children from accessing such content. The board is also mandated to ensure that certain material is not aired during times that children are likely to be watching TV.
Mutua’s gusto is duly noted. However, he should be alive to the fact that Kenya is a constitutional democracy with a vibrant and progressive Bill of rights that is governed by the rule of law. He should not impose his views to Kenyans in a similar manner in which a parent would control what is viewed in his house. He is not our father and we are not his children.
Writer is Advocate of the High Court