The political messaging regulations created by the National Cohesion and Integration Commission and the Communications Authority of Kenya seek to anchor themselves on a law that has been in operation since March 2009 to rein in those who would like to share volatile messages on bulk text messages or through social media.
Kenyans have up to July 4 to recommend any changes to draft rules seeking to punish those who spread falsehoods and create animosity through electronic gadgets during the election period.
One contentious recommendation is that if one has doubts about the message they are about to post on social media, then they can send it to the NCIC, who “shall respond to the publisher within 24 hours”.
The rules also seek to compel everyone who posts political content to say if their messages were made because of special requests or personal interests.
Social media users are also supposed to ensure that everything they post is accurate.
“It shall be the responsibility of the content author to authenticate, validate the source and truthfulness of their content prior to publishing,” the regulations say.
The two agencies have provided the CA’s postal address and an email address, [email protected], through which Kenyans can air their views on the regulations. The State agencies say the new rules are an improvement of those issued in 2012 ahead of the last General Election.
But lawyers and other players in the telecommunications sector have scoffed at the regulations, saying they will not only be hard to execute but that they also lack a legal backing.
“The problem comes when they want to regulate the entire content of the social media, because under articles 33, 34 and 35 of the Constitution, the freedom of expression and freedom of the media is guaranteed,” lawyer Nelson Havi told the Nation.
“Much earlier, the main charges that CA was using against the social media were two. One was criminal libel and the other was on the misuse of a communication device. Both were declared unconstitutional by the High Court,” he said.
In Mr Havi’s opinion, the only part of the regulations that governs the sending of bulk text messages should stand.
“The regulations that relate to bulk messages are appropriate, because we don’t want our opinion leaders or elected political leaders to mislead us,” Mr Havi said.
The rules dictate that no bulk text messages will be in vernacular. They also give mobile phone company operators the power to stop circulation of messages deemed inflammatory.
“But as regards the section on the social media, they need to remove all of it,” the lawyer said. “If and when they are made into law, the regulations will be successfully quashed by the courts.”
Mr Elias Kibathi, another lawyer in Nairobi, said the regulations are an attempt to introduce censorship laws through the backdoor.
“What they are avoiding is going to Parliament, or even passing regulations,” Mr Kibathi said. “These guidelines are just an attempt to bypass the role of Parliament in legislation.”
The regulations, available on the NCIC’s website, say they are anchored on the National Cohesion and Integration Act that was passed in 2008 as lawmakers sought to stop a repeat of the chaos that followed the 2007 General Election.
“Any person who commits an offence under this section shall be liable to a fine not exceeding Sh1 million or to imprisonment for a term not exceeding three years or to both,” the NCI Act says in its section on hate speech. The same action is prescribed for any person who “utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race”.
The rules by the NCIC and the CA say the NCI Act is among the pieces of legislation to be used in prosecuting those who flout laid down rules.
But in Mr Kibathi’s view, there is much vagueness in the announced rules that they cannot lead to a fine or a jail term for anyone facing prosecution.
“For example there is the one that talks about honesty; that a person should be honest in their communication. You know that issue of objective truth; that huge debate about what is objective truth. Criminal offences require you to have an intention. That is something that is not addressed by these guidelines,” he said.
Mr Kibathi argued that dishonesty is not one of the exceptions mentioned by the Constitution where one’s freedom of expression can be curtailed.
“It thus limits freedom of expression to a level that the Constitution did not contemplate and in a manner that is so vague that the citizen will be in doubt as to what is prohibited,” he said.
Mr Kennedy Kachwanya, the chairman of the Bloggers’ Association of Kenya, said using the law to regulate social media conduct is an unwise move.
“Social media is never controlled by force or power of the State. The best way is first to have a proper community built around messaging that is self-correcting in such a way that If I see somebody on my timeline talking in a way that I see it is hate speech, then I say, ‘No, I don’t want to see this from you.’ Or people unfollow the person,” Mr Kachwanya said.