The internet has allowed people to connect with anyone, anywhere at any time. It has placed instant news at our fingertips and started trends faster than the traditional print media can print out an article.
Nowhere has the power of the internet been so magnified and realized than in the arena of free speech. The ever-increasing bandwidth coupled with anonymity has enabled millions of people to say things that they otherwise wouldn’t have the courage or, let’s be honest – sense to post and suffer little to no negative consequences for their action. The famous “Keyboard warriors”.
In recent years, the internet, and more specifically, cyberbullying has been identified as a very real and potent threat to the mental health of not just teenagers but adults alike. With news stories of young people falling into depression, anxiety or worse, committing suicide after cruel internet roasts go viral becoming so frequent that they barely make it to the 9 O’clock news stream.
The question that had been posed so eloquently by columnists that came before “where to draw the line between free speech and cyberbullying/harassment” finally found a lasting answer in the enactment of the Computer Misuse and Cybercrimes Act of 2018. More specifically section 27 which tackles Cyber Harassment. Yes. 2018. This law was enacted in 2018 and with the current election fever taking over the country, it might be time to go over cyber harassment again with Kenyans.
Many Kenyans are passionate about their leaders and the political scene, and while being so easily consumed in the frenzy of online debates, arguments, trends and what have you, are likely to find themselves in conflict with the Computer Misuse and Cybercrimes Act. Section 27 of this Act explains that if you, either by yourself or jointly with other people engage in communication with another person over an online social platform which causes the person to be reasonably apprehensive or fear of violence to them or damage or loss on that their property; or detrimentally affects that person; or is in whole or part, of an indecent or grossly offensive nature and affects the person, then you are deemed to have committed an offence and may be liable on conviction to a fine not exceeding Kshs. 20 Million or to imprisonment for a term not exceeding ten years, or to both.
The law also captures the offence of hate speech which tends to run rampant during the electioneering season in Kenya, with various leaders being summoned by various law enforcement agencies in connection with harmful speech. Now, under the Computer Misuse and Cybercrimes Act, the average Kenyan can also face criminal charges for spewing hate speech online. Section 22 (2) of the Act doesn’t go into much detail but manages to clearly state that freedom of expression under Article 33 of the Constitution shall be limited in respect of the intentional publication of false, misleading or fictitious data or misinformation that constitutes hate speech.
This, therefore, means that the freedom of expression is not an absolute right but can and has been limited by virtue of the Cybercrimes Act to prohibit false publications made online that are considered to be hate speech. Therefore, as Kenyans after waking up in the dead of night, standing in queues for hours to cast their vote for a preferred candidate and waiting for the victors to be announced, while remaining glued to conversations across popular social media platforms, you might be reminded to think before you post.
Diana Maimba
Legal Assistant
12th August 2022
Sound and well researched article.