Re: [kictanet] BAKE condemns the arrest and intimidation of Kenyans online
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-crim... 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-r... ) 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-abou... 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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1 *Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/> 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 <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-intimidat...
----
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 <http://www.blog.bake.co.ke/>
skype: muthoni.gachango | twitter: <http://twitter.com/uQweli> @cheekynoni <http://twitter.com/cheekynoni>
Ephraim There is already a court case challenging the constitutionality of the Act. 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 1:52 PM, Ephraim Percy Kenyanito <ephraim@accessnow.org> wrote:
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-crim...
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-r...)
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-abou...
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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1
Subscribe to the Access Now Express, our weekly newsletter on digital rights Sign up for our action alerts
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-intimidat...
----
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
Seems like, I don't have it on record, please share with me the number and the details, would like to follow up and support where possible. -- 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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1 *Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/> On 25 January 2016 at 14:40, Ali Hussein <ali@hussein.me.ke> wrote:
Ephraim
There is already a court case challenging the constitutionality of the Act.
*Ali Hussein* *Principal* *Hussein & Associates* +254 0713 601113 / 0770906375
Twitter: @AliHKassim
Skype: abu-jomo
LinkedIn: http://ke.linkedin.com/in/alihkassim <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 1:52 PM, Ephraim Percy Kenyanito <ephraim@accessnow.org> wrote:
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-crim...
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-r... )
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-abou...
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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1
*Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/>
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 <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-intimidat...
----
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 <http://www.blog.bake.co.ke/>
skype: muthoni.gachango | twitter: <http://twitter.com/uQweli> @cheekynoni <http://twitter.com/cheekynoni>
Yes it is true that freedom of speech/ media freedom is not absolute as there is a 3 part test ((i) be provided by law, (ii) pursue a legitimate aim, and (iii) be necessary in a democratic society, in order to be permissible under Customary International Law, however, the law must be of ‘sufficient precision to enable the citizen to regulate his conduct.’ My contention is that section 29 of the Kenya Information and Communications (KICA) Act read with the Penal Code and certain provisions of Media Act can be used to prosecute anything. Please see my 2014 analysis here: https://thediaryofaglobalcitizen.wordpress.com/2014/03/04/lets-get-real-abou... -- 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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1 *Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/> On 25 January 2016 at 15:11, Waithaka Ngigi <ngigi@at.co.ke> wrote:
Hi,
Would like to ask, but don't those laws have a role to play in limiting propagation of offensive media?
If anyone is arrested for sharing on social media, grossly photos of our dead soldiers; soldiers who are our brothers, sisters, husbands, wives, sons & daughters, then the fine and prison terms should be tripled from what they are as per the current law.
Freedom comes with responsibility, and in this and other similiar cases the latter has been completely pushed aside at the altar of freedom.
Waithaka Ngigi
Alliance Technologies www.at.co.ke *From: *Ephraim Percy Kenyanito via kictanet *Sent: *Monday, January 25, 2016 2:53 PM *To: *Ngigi Waithaka *Reply To: *KICTAnet ICT Policy Discussions *Cc: *Ephraim Percy Kenyanito; Nani.Jansen@mediadefence.org; info@mediadefence.org; Jane Muthoni; ddeya@lawyersofafrica.org; Donald Deya *Subject: *Re: [kictanet] BAKE condemns the arrest and intimidation of Kenyans online
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-crim...
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-r... )
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-abou...
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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1
*Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/>
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 <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-intimidat...
----
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 <http://www.blog.bake.co.ke/>
skype: muthoni.gachango | twitter: <http://twitter.com/uQweli> @cheekynoni <http://twitter.com/cheekynoni>
On Jan 25, 2016 3:11 PM, "Waithaka Ngigi via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
Hi,
Would like to ask, but don't those laws have a role to play in limiting
propagation of offensive media?
If anyone is arrested for sharing on social media, grossly photos of our
dead soldiers; soldiers who are our brothers, sisters, husbands, wives, sons & daughters, then the fine and prison terms should be tripled from what they are as per the current law. Hi Ngigi, There is no such law. When when CORD, Article 19, and KNHRC challenged the constitutionality of the Security Laws Ammendment act 2014, the court ruled that it's unconstitutional to prosecute anybody for sharing photos, or any information that may jeopardise the security organ's operations. The media was urged to be responsible and self regulate, but it's not criminal to share such information. This one is done and dusted. There is no way a competent court in Kenya will prosecute anybody for sharing such information. Yesterday the police could not find grounds to prosecute Yasin Juma. The only provisions that stood in 2014 where those on surveillance; monitoring and interception of communication. The prohibition on the publication or broadcast of images of dead or injured people, which are “likely to cause fear and alarm in the general public, or disturb the peace”, was disproportionate. The Court found that there was no rational connection between the limitation on publication and the fight against terrorism.The Court further agreed that the criminalisation of the publication or broadcast of information ‘which undermines investigations or security operations” by the national police and defense forces would have a chilling effect on freedom of expression. The Court held that the effect of the prohibition would amount to “a blanket ban on publication of any security-related information without consulting the National Police Service”. And Nkaiseri and his ilk should be prosecuted for mistreating and harassing Kenyans. We should not live in fear, nor play into the hands and strategies of the enemy, Alshabab.
On 26/01/2016, Waithaka Ngigi <ngigi@at.co.ke> wrote:
Mwendwa,
*IF* there's no such law, then there ought to be such a law.
Ngigi, there was actually such a law that was passed in 2014 which the court ruled violated the constitution, and it was scrapped. -- ______________________ Mwendwa Kivuva, Nairobi, Kenya twitter.com/lordmwesh
Just to add. As I stated that free speech is not absolute. Under Article 33 (2) of Kenyas Constitution, "the right to freedom of expression does not extend to a) Propaganda for war; b) Incitement to violence; c) Hate speech; or d) Advocacy for hatred that ; (i) constitutes ethnic incitement, vilification of others or incitement to cause harm or (ii) based on any ground of discrimination as per Article 27." The Kenyan constitution complies with the customary 3 part test for free speech to be limited which is it only limited in circumstances which are: ((i) be provided by law, (ii) pursue a legitimate aim, and (iii) be necessary in a democratic society, in order to be permissible under Customary International Law. The contention with Section 29 of KICA Act is that it violates the second principle on "pursuing a legitimate aim" as it's very vague as generally, the law must be of ‘sufficient precision to enable the citizen to regulate his conduct.’ -- 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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1 On 26 Jan 2016 10:38, "Mwendwa Kivuva via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
On 26/01/2016, Waithaka Ngigi <ngigi@at.co.ke> wrote:
Mwendwa,
*IF* there's no such law, then there ought to be such a law.
Ngigi, there was actually such a law that was passed in 2014 which the court ruled violated the constitution, and it was scrapped.
-- ______________________ Mwendwa Kivuva, Nairobi, Kenya twitter.com/lordmwesh
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The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
Colleagues Just picked this from another group discussion In June 2015 ARTICLE 19 filed a case in the constitutional court challenging Section 29 of the KICA Act . The ruling is being issued on 28 January. Meanwhile see - https://www.article19.org/resources.php/resource/38241/en/kenya:-intimidatio... Regards, Patrick On 25 Jan 2016 14:52, "Ephraim Percy Kenyanito via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
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-crim...
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-r... )
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-abou...
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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1
*Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/>
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 <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-intimidat...
----
Kind regards,
Jane Muthoni | Administration Manager, Bloggers Association of Kenya (BAKE)
*T: 0733522229 <0733522229>, 0704090471 <0704090471>* | *personal - *0720 800927 e: muthoni@bake.or.ke w: bake.co.ke | b: blog.bake.co.ke <http://www.blog.bake.co.ke/>
skype: muthoni.gachango | twitter: <http://twitter.com/uQweli> @cheekynoni <http://twitter.com/cheekynoni>
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The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
Great to hear that Henry, Riva (and the amazing team at Article19) have this covered. Looking forward to the court outcome. -- 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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1 *Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/> On 25 January 2016 at 17:31, Victor bwire <vicbwire@gmail.com> wrote:
Colleagues
Just picked this from another group discussion
In June 2015 ARTICLE 19 filed a case in the constitutional court challenging Section 29 of the KICA Act . The ruling is being issued on 28 January.
Meanwhile see - https://www.article19.org/resources.php/resource/38241/en/kenya:-intimidatio...
Regards,
Patrick
On 25 Jan 2016 14:52, "Ephraim Percy Kenyanito via kictanet" < kictanet@lists.kictanet.or.ke> wrote:
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-crim...
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-r... )
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-abou...
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 Fingerprint: B0FA394AF73DEB7AA1FDC7360CFED26DE6BA8DC1
*Subscribe *to the Access Now Express <https://www.accessnow.org/campaign/#sign-up>, our weekly newsletter on digital rights *Sign up* for our action alerts <https://www.accessnow.org/campaign/>
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 <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-intimidat...
----
Kind regards,
Jane Muthoni | Administration Manager, Bloggers Association of Kenya (BAKE)
*T: 0733522229 <0733522229>, 0704090471 <0704090471>* | *personal - *0720 800927 e: muthoni@bake.or.ke w: bake.co.ke | b: blog.bake.co.ke <http://www.blog.bake.co.ke/>
skype: muthoni.gachango | twitter: <http://twitter.com/uQweli> @cheekynoni <http://twitter.com/cheekynoni>
_______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet
Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/vicbwire%40gmail.com
The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for people and institutions interested and involved in ICT policy and regulation. The network aims to act as a catalyst for reform in the ICT sector in support of the national aim of ICT enabled growth and development.
KICTANetiquette : Adhere to the same standards of acceptable behaviors online that you follow in real life: respect people's times and bandwidth, share knowledge, don't flame or abuse or personalize, respect privacy, do not spam, do not market your wares or qualifications.
participants (5)
-
Ali Hussein -
Ephraim Percy Kenyanito -
Mwendwa Kivuva -
Victor bwire -
Waithaka Ngigi