Internet regulation in Kenya is still evolving. The country does not have specific cyber laws and as such the entry point of any legal analysis are the existing media, communications and information laws, the international instruments and the Constitution of Kenya. However, there is a draft law being prepared.
Already, Article 19 has raised a red flag on the Bill. Specifically it authors that
the Bill provides for incredibly broad speech offences that could have a devastating effect for freedom of expression online in Kenya. It also provides for unduly broad offences against computers and other computer-related offences.
Kenya’s Constitution contains elaborate provisions in the Bill of Rights. In addition, Article 2 of the Constitution recognizes that international laws signed by Kenya form part of Kenyan law including customary international law. However, some laws, like sections of the Penal Code that existed prior to independence are still existent today, some being used to stifle freedom of expressions guaranteed by the Constitution. These laws can only be removed through courts where a case is lodged with the offensive provisions or public interest litigation seeking to declare them unconstitutional.
According to a report by the Kenya Human Rights Commission (KHRC) dubbed ‘The Internet Legislative and Policy Environment in Kenya’ published in January 2014, Kenya has acceded to the main United Nations human rights instruments, including the Universal Declaration on Human Rights (UDHR); the International Covenant on Civil and Political Rights (ICCPR); and the International Covenant on Economic, Social and Cultural Rights (ICESCR); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); and the African [Banjul] Charter on Human and Peoples’ Rights.
These laws are now part of Kenya law courtesy of Article 2 (5) and (6) of the Kenyan Constitution. The Article provides that the general rules of international law, and any treaty or convention ratified by Kenya forms part of the law of Kenya. It means that someone whose internet freedom has been threatened can invoke these international instruments in a court of law to seek redress.
Critical Bill of Rights provisions in the Constitution relevant to internet freedom are; the rights to privacy; to access to information; to property; to consumer protection; to fair administrative action; to access to justice and fair hearing; to freedom of conscience, religion and opinion; to freedom of expression; and to freedom of the media.
The KHRC report authors that;
As per Article 21 of the Constitution, the State and every State organ is required to observe, respect, protect and fulfill the rights and fundamental freedoms in the Bill of Rights. It further requires the State to enact and implement legislation to fulfill its international obligations in respect of human rights and fundamental freedoms. Article 22 addresses the question of legal standing in court by granting every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is
It is useful to note that these rights have limitations. Article 24, states that they can only be limited
“by law to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors.”
Some of the rights that can be limited include freedom of conscience, religion, belief, opinion, freedom of expression and of the media.
In implementing the Constitution, some new laws passed or amended have provisions that threatened freedom of expression including internet freedoms. Some have already been used. In late 2013 Parliament passed the Kenya Information and Communication Act (KICA) 2013 which repealed the Kenya Information Act of 1998, revised in 2009, and the Media Council of Kenya Act 2013 which repealed the Media Act of 2007.
KICA 2013 undermines the freedom and independence of the media by giving the state-controlled Communication Authority of Kenya power to regulate and control media, thereby encroaching on the functions and responsibilities of an independent statutory organ, the Media Council of Kenya as provided for in the Constitution. There is however a court case on the issue. Moreover, some bloggers have already been charged in court, as documented elsewhere in this platform, using these laws.
It establishes the Communications and Multimedia Tribunal to hear complaints against journalists or persons accused of violating the Act (with an expanded definition to include bloggers ). This tribunal, which has a heavy composition of government appointees,
essentially usurps the powers of the Media Council of Kenya, a hitherto independent body that has been the self regulatory mechanism for the media
asserts the KHRC report.