Dear Listers, Jane and Ali,

It is very unfortunate to hear of these case and arrests over last week and the weekend.

What do you think is the best strategy for us to work together to challenge the constitutionality of these provisions of the 2013 law; "section 29 of the Kenya Information and Communications (KICA) Act (2009), as grounds for arrests and prosecution. Section 29, improper use of a telecommunication system, says that a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person; commits an offence and shall be liable on conviction to a fine not exceeding Ksh. 50,000 or to imprisonment for a term not exceeding three months, or both."

In my opinion, this provision is vague and in contravention with Customary International Law, I refer to The Sunday Times v The United Kingdom where the European Court of Human Rights stated that the law must be of ‘sufficient precision to enable the citizen to regulate his conduct.’

In December 2014, the African Court on Human and Peoples’ Rights ruled that imprisonment for defamation violates the right to freedom of expression while criminal laws should only be used in restricted circumstances. The Court ordered Burkina Faso to change its criminal defamation laws. Though this case was about criminal defamation, the principle might be interpreted to be the same regarding criminal restriction of free speech: http://www.mediadefence.org/news/african-court-delivers-landmark-ruling-criminal-libel

In May 2015, In its first judgment on free speech, the East African Court of Justice ruled that restrictions on the press imposed through Burundi’s 2013 Press Law violate the right to press freedom and the right to freedom of expression. (http://www.mediadefence.org/news/east-african-court-condemns-burundi-press-restrictions)

I think it is that time that we need to brainstorm the best strategy for challenging these provisions in the Kenyan courts and maybe an appeal at the EAC and AU level as from December 2014, they are very interested to set precedent in this area.

Please see something, I wrote on my personal blog at the beginning of 2014 regarding these laws: https://thediaryofaglobalcitizen.wordpress.com/2014/03/04/lets-get-real-about-kenyan-media-laws/

P.S- I have copied Donald Deya from the Pan African Lawyers Union (PALU) who acted on behalf of the Burundi Journalists’ Union, and Henry and Riva from Article 19 given their experience litigating such cases and MLDI’s Legal Director Nani Jansen given their experience with the Burkina Faso case.

Best Regards,

Ephraim Percy Kenyanito

Sub-Saharan Africa Policy Analyst

Access Now | accessnow.org

tel: (+254)-786-191-930/ (+254)-751-804-120
@ekenyanito
PGP: E6BA8DC1

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On 25 January 2016 at 12:03, Ali Hussein via kictanet <kictanet@lists.kictanet.or.ke> wrote:

Jane

Thanks for sharing. This paragraph in the article stands out:-

"Police have frequently used section 29 of the Kenya Information and Communications (KICA) Act (2009), as grounds for arrests and prosecution. Section 29, improper use of a telecommunication system, says that a person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person; commits an offence and shall be liable on conviction to a fine not exceeding Ksh. 50,000 or to imprisonment for a term not exceeding three months, or both."

So sending a message that causes annoyance, inconvenience or needless anxiety is now a criminal offense?

If we continue to be intimidated by this then I fear most listers on this list have been offenders many times over.

As a country we need to review how we engage and of course decency, decorum and etiquette should be foremost in our minds when we post on social media. The question is how do we deal with supposed offenders. And what measurement do we use?

Ali Hussein
Principal
Hussein & Associates
+254 0713 601113 / 0770906375

Twitter: @AliHKassim
Skype: abu-jomo
LinkedIn: http://ke.linkedin.com/in/alihkassim
Blog: www.alyhussein.com

"Discovery consists in seeing what everyone else has seen and thinking what no one else has thought". ~ Albert Szent-Györgyi

Sent from my iPad

On 25 Jan 2016, at 11:34 AM, Jane Muthoni via kictanet <kictanet@lists.kictanet.or.ke> wrote:

Hello,

This is a statement BAKE has released on the recent arrest and prosecution of Kenyans online. Read more here: http://www.blog.bake.co.ke/2016/01/24/bake-condemns-the-arrest-and-intimidation-of-kenyans-online/

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Kind regards,

Jane Muthoni | Administration Manager, Bloggers Association of Kenya (BAKE)

T: 0733522229, 0704090471 | personal - 0720 800927
e: muthoni@bake.or.ke w: bake.co.ke | b: blog.bake.co.ke

skype: muthoni.gachango | twitter: @cheekynoni