On January 16th 2016, popular social media-savvy journalist Larry Madowo posted the tweet captioned above in reference to a list of alleged corrupt public officials disclosed by Raila Odinga, of Luo descent, a former Prime Minister and currently leader of the Orange Democratic Movement (ODM) party in the Opposition. The uproar and outrage from Raila supporters on social media was incredible. One Raila supporter reportedly chided Madowo in the following terms: “Kneel at the shores of Lake Victoria and call the name of Raila three times at the full glare of cameras…Then present a black goat without blemish to The Luo Council of elders. Raila is an institution not an individual.”
Late last year, the Communications Authority of Kenya (CA) published six Draft Kenya Information and Communications Regulations inviting stakeholders and members of the public to provide comments on these Regulations. One of these Regulations is the Kenya Information and Communications (Electronic Transactions) Regulations 2016 which are a new set of regulations developed following amendments to the Constitution in 2010 and the Kenya Information and Communications Act in 2013.
From the discussion of the draft below, one forms the general view that these proposed Electronic Transactions Regulations ought to be re-drafted as a stand-alone Act of Parliament as opposed to being mere subsidiary legislation. Be it as it may, the draft contains a number of technically impracticable provisions, unclear terms blurring the line between service providers and clients.
Late last year, the Communications Authority of Kenya (CA) published six Draft Kenya Information and Communications Regulations inviting stakeholders and members of the public to provide comments on these Regulations. One of these Regulations is the Kenya Information and Communications (Cyber-security) Regulations 2016 which are a new set of regulations developed following amendments to the Constitution in 2010 and the Kenya Information and Communications Act in 2013.
In an earlier blogpost here, CIPIT Director Isaac Rutenberg has already outlined some of the difficulties with a few of the proposed provisions in the draft Regulations that had been reported in the media. From the discussion of the draft below, one forms the general view that the Cybersecurity Regulations contain a number of technically impracticable provisions, unclear terms and contradictory obligations for service providers.
Last month, Kenya’s top bloggers (including yours truly) were invited by the US Embassy in Kenya for an official meeting dubbed “Luncheon with Bloggers” at the Residence of the US Ambassador in Nairobi. This Luncheon, organised through Bloggers Association of Kenya (BAKE), was an opportunity for the bloggers and social media influencers to discuss openly with the US Ambassador the state of blogging and social media in Kenya, with particular focus on BAKE’s recently launched report on blogging and social media in Kenya. A copy of the Report is available here.
According to BAKE, blogging in Kenya started in 2003. Since then, the blogging space has grown tremendously, in the number of bloggers as well as variety and quality of content created by bloggers about Kenya. Kenya has seen a steady rise in the number of bloggers and social media opinion makers who exercise their freedom of speech on the internet on politics and on social issues due to the tremendous growth in internet access and usage among the Kenyan youth.
Arguably the most prominent Advocate on Twitter at @ahmednasirlaw
Previously, this blogger has discussed here the Law Society’s enormous task of regulating online social networking by Advocates. In a recent notice to its membership, the Law Society of Kenya (LSK) announced that it is in the process of developing a comprehensive code of ethics and conduct for Advocates.
In this regard, it is submitted that this proposed Comprehensive Code of Ethics and Conduct for Advocates ought to address issues surrounding Advocates and Firms of Advocates interested in using, or currently using social media. The same ethical obligations that Advocates adhere to professionally also apply to conduct in an online environment.
This past month, most of the main intellectual property (IP) stories making news happened to have a corresponding twitter hashtag. As an enthusiast of both IP and Social Media Law, this blogger hopes that this confluence of trending IP stories continues throughout the year.
On January 30, 2015, a stakeholders’ workshop on the formulation of a piece of legislation on Culture. This #CultureBillKE topic arises from a constitutional obligation on the Legislature to enact this law on Culture within the first five years from the date of promulgation of the Constitution. Therefore the deadline for enactment of a National Culture Bill is no later than August 27, 2015! In preparation for the workshop, the Ministry has circulated a zero draft of the Bill available here. During the workshop, the participants confirmed this blogger’s earlier concerns that the draft Bill does not address important concerns touching on the promotion and protection of traditional knowledge (TK), traditional cultural expressions, folklore as well as certain in situ genetic resources.
Earlier in the month of January, the topic of #DigitalMigration arose prominently both online and offline. The topic went viral following a controversial television (TV) infomercial by Royal Media Services (RMS), Nation Media Group (NMG) and Standard Group (SG) on their respective TV channels in which they allege that GOTv and StarTimes are broadcasting the former’s TV channels without consent thereby infringing on the copyright and related rights of RMS, NMG and SG. The advert goes further to advise members of the public not to purchase GOTv and StarTimes set top boxes until RMS, NMG and SG launch their own set top boxes. This advert came in the wake of an order by two judges of the Supreme Court on January 5, 2015 temporarily blocking the Communications Authority of Kenya from switching off the analogue signals of the three media houses after the latter made an urgent application requesting more time to complete the migration from analogue to digital broadcasting.This blogger weighed in on the numerous IP-related risks associated with the advert even as GOTv and StarTimes successfully applied for an injunction to stop the airing of the advert.
January 2015 was an exciting month for many Kenyans as the “Share a Coke” campaign kicked off in Kenya. The #ShareACokeKE promotion is part of the Coca Cola Company’s hugely successful “Share A Coke” international promotion which originally started in Australia in 2011 and has since been rolling out around the world, making its African premiere in South Africa towards the end of 2013. This promotion, targetted mainly at teens and millennials, is intended to allow people to take the Coca-Cola script and replace it with their name on a bottle or can of the well-known beverage. For those with less popular or rare names, the digital version of the “Share a Coke” promotion allows users to create a virtual can with their names which is generated in .png format and available for download and social media sharing. This particular story is one that underscores the important intersection between IP and social media. The #ShareACokeKE campaign allows Coca Cola to have unrestricted IP rights to use, modify, copy and store user-generated content not to mention the increased traffic to the Company’s web and social media platforms.
Meanwhile, Kenya’s leading mobile network operator Safaricom Limited launched #ZinduaCafé, an idea submission web portal which allows registered users to submit ideas, applications or prototypes to Safaricom. Once these submissions are made to Safaricom, the telecommunication giant will review them internally and send either a ‘interested’ or a ‘regret’ response to the user. If Safaricom is ‘interested’ in any submission, the user will be offered a non-disclosure agreement and commmercial contract governing Safaricom’s intended implementation of the submission. Although this blogger commends #ZinduaCafé for being an excellent source for unsolicited legal advice on IP rights protection, the portal’s aim is abundantly clear: to coax as many Kenyans as possible to disclosing their creations, innovations and inventions for the benefit of Safaricom.
The answer to this question is simply: it depends. A good way to unpack this question is to use a live example, say one Dennis Itumbi. For those who do not know Itumbi, a quick google search reveals that Dennis Ole Itumbi is the Director of Digital Communication in the Office of the President of the Republic of Kenya. Therefore, by all accounts, Itumbi is a public officer/state officer as defined in the Constitution as well as several pieces of legislation. For good measure, Itumbi’s twitter bio reads in part: “Currently SNR.Director Digital. Innovations&Diaspora Comms”
In 2013 when President Uhuru Kenyatta come into office, he announced his intent to overhaul how the Presidency communicates and interacts with citizens by establishing the Presidential Strategic Communications Unit (PSCU) to replace the Presidential Press Service (PPS). The PSCU is charged with covering the President of the Republic, the First Lady of the Republic along with research on policy, communication of government policy, digitisation of government communications and branding State events and functions. Itumbi was appointed to his current position (as indicated in his twitter bio) along with four other directors all running various departments within the PSCU, which is headed by a Secretary of Communications who is also the State House Spokesman.
In a recent article by Prof. Makau Mutua titled “It’s unfortunate that abuse of social media extends to state authorities”, he accuses Itumbi of using social media to castigate and vilify critics of the Presidency. Makau personally calls out Itumbi for using social media as a weapon of propaganda against the people, especially those who seek to hold the government accountable. In this regard, Prof. Mutua states:
“One Dennis ole Itumbi, the so-called Director of Digital Communication in the Office of the President, uses his platform to vilify Jubilee critics and civil society. He can’t express “personal” views on social media because the line between the public and the private doesn’t exist for such an official of his status. Kenyan taxpayers buy his ugali and sukumawiki [food]. Neither he, nor any senior official within the state, should castigate critics on social media.”
While Mutua may have his personal reasons for singling Itumbi out in his popular weekly newspaper column, his article raises several interesting issues for enthusiasts of social media and the law. After disclosing his position as a public officer serving in the Executive, the final part of Itumbi’s bio reads: “My Space,My Tweets”. Presumably these words are meant to serve as a disclaimer similar to those found on most twitter bios, such as “Views Are My Own” and “Retweets are not endorsements”. This blogger opines that such twitter disclaimers offer as much false sense of protection from legal liability as the words “no copyright intended” written by users of YouTube when they upload artists’ songs and videos without the latter’s consent. The truth of the matter is that these widely used legal-sounding, bite-sized expressions are not fully understood by social media users vis-a-vis the real legal ramifications of their actions such as uploading, posting and sharing of content on social media.
In a previous blogpost here, we discussed the extent to which the law regulates the use of social media by public officers. Looking forward, this blogger would recommend the following: guidelines on social media for public servants, a social media policy for the Public Service and social media training for public servants.
In the case of Itumbi whose salary is paid by the Kenyan tax-payer, this blogger submits that the State would be well within the law to fire or reprimand Itumbi for any tweets published from his twitter account if such tweets are deemed to fall foul of his position in public service. Equally, there is a real likelihood that the State may be exposed to vicarious liability for any tweets by Itumbi that threaten to infringe or infringe on the constitutional and legal rights of any citizen of Kenya.
“…It is only those provisions which disclose a danger to life and limb or imminent danger to the Bill of Rights at that very moment that the Court may be justified in suspending by way of conservatory orders. (….) Clause 12 of the Act introduces a Clause which limits the freedom of expression and freedom of the media and imposes a hefty fine of Kshs 5,000,000.00 for the offenders or 3 years in prison or both. If implemented, there is imminent danger of the offenders losing their liberty. (….) In the result I grant conservatory orders suspending the following Clauses in The Security Laws (Amendment) Act, No 19 of 2014 together with the amendments to the respective Statutes pending the hearing and determination of these petitions: (1) Clause 12 which inserted section 66A to the Penal Code.” – Ruling by Justice G.V. Odunga in Petition Nos 628 & 630 of 2014.
The recent High Court ruling in the case of Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another  eKLR has received nation-wide attention. In this case, the Coalition for Reform and Democracy (CORD) a coalition of political parties rushed to the High Court as a matter of urgency to challenge the constitutionality of the Security Laws (Amendment) Act, No. 19 of 2014 assented to by President Kenyatta (pictured above) on December 19, 2014. The court in its ruling declined to suspend the coming into force/implementation/operation of the entire Security Law (Amendment) Act, 2014 but granted conservatory orders suspending several clauses in Clause 12. A copy of the ruling and the Act in question are available here and here respectively.
Clause 12 of the Act reads as follows:
“Insertion of new section 66A in Cap. 63.
The Penal Code is amended by inserting the following new section immediately after section 66─
66A. A person who publishes or causes to be published or distributed obscene, gory or offensive material which is likely to cause fear and alarm to the general public or disturb public peace is guilty of a felony and is liable, upon conviction, to a fine not exceeding one million shillings or imprisonment for a term not exceeding three years or both, or, where the offence is committed by a media enterprise, to a fine not exceeding five million shillings.”
The primary target of this amendment is no doubt the fourth estate, namely journalists and media houses disseminating information through print, broadcast (TV, radio, online) and other media. However this blogger argues that this amendment also endangers the rights of all Kenyans who use social media to express opinions, beliefs or views that are political in nature. In a previous blogpost here, we highlighted two cases of social media users being arrested and charged with offences under the Penal Code. This amendment appears to create an offence aimed at curtailing freedom of media and freedom of expression which are fundamental rights enshrined in the Bill of Rights of the Constitution.
Generally speaking, the State has a political interest in controlling the activities of the press within its jurisdiction. The rationale for having laws that curtail press freedom is the protection of several categories of interests, namely the interests of the state (especially its security), the interests of the society (especially public health and moral concerns), the interests of justice and the interests of the individual (especially his or her privacy).
Prior to the contested insertion of section 66A, the Penal Code has historically been an important legislation to control the publication of material that are deemed to be detrimental to the interests of the state, particularly on the grounds of national security. One such provision was section 56 on seditious intention and publication. The section pegged the felony of sedition on seditious intention, which section 56 defined as an intention to, inter alia, “rouse discontent or disaffection amongst the inhabitants of Kenya”. The section went on to explain that a seditious publication is a public publication “containing any word, sign or visible presentation expressive of a seditious intention”.
It is widely accepted that section 56 was subsequently repealed as it was deemed repugnant to the freedom of expression and freedom of press.
On April 14, 2014, the Nigerian militant Islamist group Boko Haram kidnapped 276 school girls in the town of Chibok. “Boko Haram” translates to the unacceptance of Western education, and the group allegedly performed this act to showcase their beliefs of the place women should hold in society; working in the home and not attending school. As this occurred, the Twitter and Facebook spheres exploded with influencers and average joes holding up signs in a photograph with the hashtag “#BringBackOurGirls” on it. According to the Mail & Guardian (M&G), the hashtag #BringBackOurGirls became a global social media rallying cry to generate attention for the girls.
In a recent article, M&G highlighted Africa’s top 15 trending Twitter #hashtags in 2014 noting that twittersphere in Africa is growing and developing: with the Middle East and Africans accounting for 7.2% of Twitter users worldwide. In this regard, M&G states that: “Hashtags play a vital role in the spread of information, as a form of activism and in some cases, as a hilarious way of making a point. It turns out that Johannesburg is the city with the most geo-located tweets, followed by Cairo and then Nairobi – a trend which can be picked up when looking at the continent’s most viral tweets.”
Other top hastags in Africa throughout 2014 included #FreeAzyz, #JollofGate, #AfricaStopEbola, #Orwell, #MousserContreEbola, #IDreamofANigeria, #ThingsLongerThanPistoriusSentencing, #PayBackTheMoney, #RememberingMandela, #EvilNanny, #ThingsIloveaboutSouthSudan and #JusticeforHanna.
In Kenya, two of the top hashtags of 2014 reported by M&G were #MyDressMyChoice and #DeadBeatKenya.
On November 11, 2014, a woman standing at the Embassava bus terminus on Tom Mboya Street in Nairobi was surrounded by a dozen of men who tore off the woman’s clothes and forced her to the ground. Her crime? She was dressed so scantily that some men felt the need to teach her a lesson in propriety. The whole thing was videotaped and put up on YouTube and also widely circulated on Whatsapp. Thereafter there were at least two other videotapped incidents of women being attacked and stripped throughout Nairobi. “Kilimani Mums”, a little known Facebook group, rallied the entire country in condemning the stripping and inspired the hashtag #MyDressMyChoice. Women, mostly from the Kilimani Mums group, went beyond hashtag activism, and rallied people to join a demonstration on November 17, 2014 against the harassment of women.
These cases of “slut-shaming” (stripping) reminded this blogger of the #PoliceUniform hashtag earlier in the year involving a female police officer Linda Okello who was sanctioned and unfairly transferred by the National Police Service for wearing a tight uniform that accentuated her curvaceous posterior. As a result of a wide-spread social media uproar over the sanctions by NPS against Akello, the transfer was quickly reversed. In this regard, it is clear to see that the hashtags are an affirmation of the fundamental freedoms and basic rights enshrined in the Constitution. Article 28 of Constitution, which is the cornerstone of the Bill of Rights, states that every person has inherent dignity and the right to have that dignity respected and protected. With specific regard to the rights of women invoked through both hashtags, Article 27 on equality and freedom from discrimination clearly states that:
“The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth…A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause 4”
In a previous blogpost here, we examined the #DeadBeatKenya trending topic which sprung from a facebook group called “Dead Beat Kenya” that names and shames absentee parents who fail to support their children. Jackson Njeru, the founder and the administrator of the page, claimed the goal of #DeadBeatKenya was to hold accountable negligent fathers and mothers by featuring detailed stories and photographs of the abandoned partners and children. #DeadBeatKenya‘s shocking and shaming approach attracted worldwide attention because some of the individuals featured on the social media page included politicians, celebrities, entrepreneurs, athletes and other public figures.
In sum, this blogger concurs that the twittersphere in Africa is indeed growing and developing. From #sidibouzid to #jan25 and beyond, hashtags in Africa continue to be an important means of expression, speech, protest and assembly by groups of people around a common cause. This blogger will continue to keenly monitor the impact of social media tools in activist movements.
Recently, this blogger has come across two cases of social media users in Kenya being arrested, detained and charged in criminal court for their tweets and/or facebook posts. In the case of one Robert Alai, media reports indicate that Alai was arrested and arraigned before Kiambu Principal Magistrate and charged with intention to undermine the authority of the President of Kenya contrary to section 132 of the Penal Code. According to the charge, it was alleged that on December 13, 2014 at an unknown place within the Republic of Kenya, Alai without lawful excuse published a message on Twitter that undermined the presidency. The tweet in question has been reproduced above which reads: ‘Insulting Raila is what Uhuru can do’. ‘He hasn’t realised the value of the presidency’. ‘Adolescent President’. ‘This seat needs maturity’
According to media reports, the prosecution had opposed Alai’s application for bail, terming the matter sensitive, and it touched on the President of the Republic, noting that once released, the accused may continue with the same publications. However the court agreed to grant him a bond noting that the case is still pending in court and Alai had a right to bail. Therefore the court ruled that Alai be released on a bond of Sh300,000 or cash of Sh200,000 pending hearing of the matter on April 16, 2015. It is reported that the court cautioned Alai on posting anything touching on the matter before court on Facebook, Twitter, WhatsApp or any other related social media platforms.
In the case of one Alan Wadi Okengo alias Lieutenant Wadi, media reports indicate that Wadi was sentenced to two years in prison after pleading guilty to charges of hate speech and undermining the authority of a public officer. Wadi, a Political Science student at Moi University, posted several offensive messages on his facebook page, including one which has been reproduced above.
According to media reports, Milimani Resident Magistrate Ann Kaguru made the following remarks while handing down the jail sentence:
“The offence is serious and a deterrent penalty is called for to serve as a warning to others abusing the social media forums.”
Generally, the Penal Code is a body of laws or codes, which gives a list of crimes and the punishments that accompany them. For instance, in Kenya’s Penal Code (Chapter 63 Laws of Kenya), the law on murder is under code 203 whereas in the US State of California murder is under code 187. The Penal Code in Kenya traces its history from colonial times commencing 1st August, 1930. Throughout its history, it has been amended to fit in new phenomena and the interests of the society it is meant to serve.
A cardinal rule of criminal responsibility under the Penal Code is stated under section 7 which reads that “ignorance of the law does not afford any excuse for act or omission…unless knowledge of the law by the offender is expressly to be an element of the offence.” Therefore it is imperative for all users of social media to familiarise themselves with the Penal Code.
In the present cases, Section 132 in the Penal Code reads as follows:
Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints, publishes any words, or does any act or thing, calculated to bring into contempt, or to excite defiance of or disobedience to, the lawful authority of a public officer or any class of public officers is guilty of an offence and is liable to imprisonment for a term not exceeding three years.
The Constitution of Kenya defines a “public officer” as “any State Officer or any person, other than a State Officer, who holds a public office”. This is a long list of officials, identical to the definition of “State Officer” which includes various categories of members in the three arms of government at both national and county levels.