STATE OF THE INTERNET IN KENYA 2017

Source: https://www.ifree.co.ke/wp-content/uploads/2018/02/State-of-the-Internet-in-Kenya-report-2017.pdf

The Bloggers Association of Kenya (BAKE) is a community association of Kenyan bloggers and content creators that promotes online content creation & free expression in Kenya. Through iFreedoms Kenya, we promote digital rights and media rights in Kenya through archival of important events, research, public interest litigation, policy intervention, advocacyand training.

BAKE is grateful to the partners and individuals who offered technical, advisory and financial support that made this reportpossible.

This report was produced as part of BAKE’s iFreedoms Kenya program.

Published by the Bloggers Association of Kenya (BAKE). February 2018

Creative Commons Attribution 4.0 Licence ‹creativecommons.org/licenses/by-nc-nd/4.0› Some rights reserved.

FAIR USE NOTICE: This work may contain fair use of copyrighted and non-copyrighted images from the public domain andthe web for non-commercial & nonprofit educational purposes. This work is distributed free of charge.

1 INTRODUCTION:

2017 was an eventful year for Kenya. Politically, the Supreme Court in thepresidential petitions made two significantrulings, one on the utility and respect oftechnology in enhancing the rule of law andthe second one on Access to Information.On the freedoms front, the HighCourt found the clause in the penal code,‘undermining the authority of a publicofficer’ as unconstitutional, thereby ensuringrestrictions to freedoms are further reduced.

It is important to note that there were fewerarrests of bloggers and influencers in 2017, as compared to 2016.

We are proud to be releasing the thirdconsecutive report documenting the digitalrights landscape in Kenya. In the last one year, we have made significant footprints inpromoting digital rights. For instance, in apartnership with the Media Legal Defense Initiative (MLDI), we trained a pool of lawyers in Mombasa and Nairobi on thelaw and the internet, a first of its kind in thecountry.

Apart from documenting various issuesthat took center stage in the last year, thisreport is also serves as a learning documentin understanding the legal and policyenvironment that informs and promotesfreedom of association, freedom of themedia, freedom of information, freedomof expression and access to information inKenya.In making this document possible weare immeasurably grateful to the partners;individuals and institutions that madethe activities during the year possible.

They include the Media Legal in Defense Initiative (MLDI), the Collaboration on International ICT Policy in East and Southern Africa (CIPESA), Internews, Access Now, Bill& Melinda Gates Foundation, MugambiLaibuta, Demas Kiprono and EphraimKenyanito among others.This report would not have been possiblewithout the input of BAKE staff, specificallyKennedy Kachwanya (Chairperson), JaneMuthoni (General Manager) and ShitemiKhamadi (Programs Manager).

We are also grateful to Renee Kamau, the report’s lead researcher.

James Wamathai, Nairobi, February 2018

2 COUNTRY CONTEXT:

1 https://www.standardmedia.co.ke/article/2001264363/why-2017-was-a-bad-year-for-kenyans2https://medium.com/@gracelouisebomu/could-fake-news-have-saved-kenya-from-an-internet-shutdown-e9f6820f2fe63https://www.ifree.co.ke/2017/08/bloggers-rationalized-website-domains-can-deleted/ and https://www.ifree.co.ke/2017/10/internet-shutdowns-take-centre-stage-internetfreedomafrica-forum/4Grace Bomu, an Open Technology Fund Fellow at the Berkman Klein Center (https://cyber.harvard.edu/events/2017/10/Mutungu) https://medium.com/@gracelouisebomu/could-fake-news-have-saved-kenya-from-an-internet-shutdown-e9f6820f2fe6

Politics dominated 2017, making for anexhilarating yet volatile year. The protractedelection timeline put a strain on the country.Over just three months, Kenya witnessed ageneral election, its subsequent invalidationby the Supreme Court, and a fresh PresidentialElection – in which the opposition leaderrefused to participate. These events werepunctuated by a beleaguered electionmanagement body, attacks on the credibilityof the election process by the opposition,attempts by the government to enactretrogressive electoral amendments, targetingof civil society organizations, not to mentionan economic boycott, protests and deaths.Right from the start of the electioneeringperiod (which was essentially set in motionin January) and throughout the events of thelast few months of 2017, the socio-economicenvironment was under immense stress. Ina survey conducted in December, it wasfound that three quarters of Kenyans feltthat 2017 was worse than the previous year,as it was characterized by a deterioration ofthe political climate, economic conditions,employment prospects, cost of living andinternal security1.Apropos of access to the Internet, that itremained open may be attributed to manyfactors according to one pundit2. On theone hand, there was concerted advocacy bydigital rights groups against a shutdown.This included sustained online campaignssuch as #KeepItOn which was employed tocreate awareness and pressure the governmentto commit to an open internet3. In addition,training workshops conducted by BAKE ondigital security, the Internet and the law aroundthe country contributed to the discourse. The expert4 posited that another reasonthe Internet could have remained open was because the government was also using the Internet to serve the state’s communication interests. The 2017 campaign period saw a spike in media manipulation, oversensationalised stories, negative campaigning,disinformation and fake news. Content suchas negative campaigning could easily betraced to the two main political camps5.The review of the legal environmentdemonstrates the role of the judiciary inadvancing the rule of law and protectingfundamental rights and freedoms.On matters election, the Supreme Courtconsidered the deployment of electiontechnology (admission of eligible votersand biometric identification, electronictransmission of the tabulated results) aswell as legal issues regarding computerforensics and hacking of election technologyequipment. It held that the irregularities andillegalities observed, specifically the failure totransmit all the results electronically as failureto adhere to the law, affected the result of theelections, and impugned the integrity of thesame. The Court subsequently declared theAugust 8 election “invalid, null and void”in a momentous judgement, earning it highpraise as a democratic breakthrough. It alsocemented the right of access to informationdue to its compliance with freedom ofinformation requests.Similarly, the High Court suspended of thecontroversial Election Laws (Amendment)Bill, 2017 pending the determination of thecase challenging its legality in 2018. The High Court also delivered progressive judgementsfor the protection of the right to free speech.The Court found the provisions on criminal defamation and undermining the authorityof a public officer to be unconstitutional inJacqueline Okuta & Another v AG & 2 othersand Robert Alai v AG and anotherrespectively.A number of legislations and regulationscame into force in 2017, and the receptionby ICT stakeholders was varied.

The much-anticipated Computer and Cybercrimes(2016) law was welcomed by most; the Draft 6http://www.ca.go.ke/images/downloads/STATISTICS/Sector%20Statistics%20Report%20Q1%20%202017-18.pdf7www.nendo.co.ke8http://www.ca.go.ke/images/downloads/STATISTICS/Sector%20Statistics%20Report%20Q1%20%202017-18.pdf9https://www.akamai.com/us/en/about/our-thinking/state-of-the-internet-report/global-state-of-the-internet-connectivity-reports.jsp10 https://www.youtube.com/watch?v=MZXI8mokVII and https://www.similarweb.com/top-websites/kenya11 https://www.consumerbarometer.com/en/trending/?countryCode=KE&category=TRN-NOFILTER-ALL Guidelines for Prevention of Disseminationof Undesirable Bulk Political SMS andSocial Media Content via CommunicationsNetworks (2017) and the Film ClassificationBoard’s “Statement on Children TelevisionProgrammes Promoting Homosexualityin Kenya” both had mixed reactions; andthe reintroduction of the InformationCommunication Technology PractitionersBill (2016) was vehemently opposed.

3 ICT INDICATORS

Mobile and internet statistics:

Mobile subscriptions:

The Communications Authority of Kenya(CA) sector statistics report6 for the firstquarter of the financial year 2017/18 (July –September 2017) revealed that the number ofmobile subscriptions stood at 41.0 million upfrom 40.2 million reported in the precedingquarter, marking a growth of 1.9 per cent overthe period. Subsequently mobile penetrationrose by 1.7 percentage points to reach 90.4per cent from 88.7 per cent recorded duringthe previous quarter.The 10 most downloaded Apps in Kenyawere found7 to be Uber, Instagram, Facebook,Branch, Facebook Messenger, Trucaller, Tala,Facebook Lite, Whatsapp and Opera Mini.

Internet statistics:

CA reported8 that data/internet subscriptionswitnessed a growth of 4.3 per cent to stand at30.8 million subscriptions from 29.6 millionsubscriptions reported the previous quarter,with mobile data/internet subscriptionscontributing 99.0 percent of the total data/internet subscriptions. Subsequently, thenumber of estimated data/internet usersgrew by 12.5 per cent to post 51.1 millionusers from 45.4 million users reported lastquarter translating to Internet penetrationlevels of 112.7 per cent during the periodunder review.The total international Internet bandwidthavailable in the country according theCommunications Authority grew by 0.1per cent to post 2,909.512 Gbps duringthe quarter under review from 2,906.873Gbps recorded during the last quarter. Usedcapacity also registered a growth of 0.5 percent to reach 887.187 Gbps up from 882.573Gbps recorded during the last quarter.Akamai’s State of the Internet / ConnectivityReport9 for the first quarter of 2017 rankedKenya’s mobile internet speeds 14th of the130 countries surveyed.The categories of most visited websitesin Kenya were found to be: internet searchengines; sports, gaming and betting websites;sites with adult content; Social Mediaplatforms; and entertainment platforms (TVand video)10.At the end of the period under review, thenumber of registered Dot KE (.KE) domainnames was registered at 69,567.The specific browsing habits and characteristics of Kenyans in 2017 accordingto the Consumer Barometer11 were as follows:

4 USER GROUPS: NUMBER OF USERS

People who access the internet: 25,683,800 People who access the internet daily18,899,400People who use a smartphone20,837,800People who use a computer10,176,600People who use a tablet3,392,200People who use one screen - a computer, smartphone or tablet16,476,400People who use two screens - two of computer, smartphone or tablet5,815,200People who use three screens - computer, smartphone and tablet1,938,400People who access the internet at least as often via smartphone as computer31,014,400Average number of connected devices per person533,060 12 Based on population of 48.46 million

13 https://twitter.com/TwitterGov/status/88974668948513996814 http://africanarguments.org/2016/12/23/lipakamatender-how-kenyas-striking-medical-workers-took-control-of-the-narrative/15 https://www.nation.co.ke/news/Sh5bn-scandal-in-Uhuru-flagship-maternity-project/1056-3431422-t9oom8z/16 https://www.the-star.co.ke/news/2016/10/29/uhuru-sister-cousin-were-paid-sh200m-health-cash_c1446057

Social Media and blogging in 2017:

According to Nendo, a Kenyan digital strategy, research and training agency, the revised number of estimated monthly activeusers per platform (based on smartphone penetration) as of September 2017 were: PLATFORMMONTHLY USERS  Whatsapp12 million  Facebook7.1 million  YouTube8 million  Instagram4 million  LinkedIn1 million  Twitter1 million  Snapchat 0.25 millionIncreased internet penetration andmobile subscriptions as detailed above havecontributed to the growth of locally generatedcontent and the corresponding proliferation ofthe blogging and Social Media communities.Relevant and prominent Twitter hashtagsincluded #KenyaDecides and #ElectionsKE(the dedicated hashtags and emoji assigned byTwitter13 on the election); #DigitalGenderGap(which highlighted the low adherence to digitalrights for women as regards online safety,access and affordability; #KeepItOn (which was a campaign against internet shutdownsduring the election period); and #FreeSSUdan4(which culminated in the successful release ofthe Kenyan nationals and their reunion withthe families in December 2017)Kenyan doctors went on strike and downedtheir tools for 100 days in protest of thegovernment’s failure to implement a collectivebargaining agreement (CBA) signed in 2013.Medics mounted a social media campaignunder the hashtag #LipaKamaTender, as away to apply pressure on the governmentto honour the CBA14. The hashtag (pay likea tender) drew attention to the corruptionallegations within the Ministry of Healthsuch as the ‘missing’ Ksh. 5 billion15, andthe tenders irregularly awarded to thePresident’s relatives, amounting to Ksh. 200milllion16. These reports of graft, juxtaposedagainst the poor working conditions of the medical facilities, the low pay and the longhours highlighted by the online campaign,led to the public calling for the governmentto honour the agreement. Using the hashtag,medical professionals also spoke of their ownexperiences, revealing details about theirindividual and institutional realities, and indoing so, also exposed the plight of medicalprofessionals as well as the overall status ofhealth care in Kenya17. The strike was calledoff in March of 2017 after a deal, whichincluded a salary increment, was struckbetween the union on behalf of the medicalfraternity and the government.One hashtag which generated a lot ofinterest and engagement during the electionwas Boniface Mwangi’s #StareheNiBonniecampaign for the Starehe parliamentaryseat on an Ukweli Party ticket18. This wasaccompanied by the crowdsourcing effortunder #JoinBonnie1MillionChallenge19 whichwas a request to his over 1 million followersto donate Ksh. 10 or more in a bid to raise atotal of KES 10 million for logistics, campaignmaterials, media and communication.Yet another was the #RegisterToVote,campaign driven by the State House digitalteam, which runs @UKenyatta, the President’sTwitter account. It was accompanied by asleek video featuring the President ‘dabbing’.Many Kenyans on Twitter (#KOT), felt thePresident’s dance was out of touch withcurrent realities in Kenya, including thedoctors’ and lecturers’ strikes, drought andAl-Shabaab attacks, among other crises.Counteracting the #UhuruDabChallenge,the #DabOfShame took form, and scoresof Kenyans on Twitter chose to participatein the challenge, but in a negative, sarcasticway. They posted pictures that graphically 17 http://africanarguments.org/2016/12/23/lipakamatender-how-kenyas-striking-medical-workers-took-control-of-the-narrative/18 https://twitter.com/bonifacemwangi/status/89376662819803545619 https://twitter.com/bonifacemwangi/status/87160299070415257620 http://www.nation.co.ke/oped/blogs/dot9/walubengo/2274560-3814268-75ohj7/index.html21 http://info.mzalendo.com/media_root/file_archive/UCL_Research_-_Press_Release.pdf22 http://info.mzalendo.com/media_root/file_archive/UCL_Research_-_Press_Release.pdf23 https://www.kachwanya.com/2017/05/26/75081/24 http://www.bakeawards.co.ke/2018/01/11/the-bake-awards-2018-submission-phase-is-now-open/25 http://www.bakeawards.co.ke/2018/01/11/the-bake-awards-2018-submission-phase-is-now-open/ depicted a President in high spirits, happilydancing away, while his citizens continued towallow in misery under the crises bedevillingthe country20. In response, the team deletedthe #UhuruDabChallenge invitation, but bythen, many Kenyans on Twitter had alreadycaptured screenshots of the deleted message.On Facebook, a Mzalendo online baselinesurvey21 of regular users revealed that mostwere youthful and very interested in politics.In the survey conducted in November of2016, research findings showed that over8300 respondents had a good understandingof the current political and electoral system.This dispelled assumptions that youth onlinewere disinterested in politics and governance.However, the same research exposed the factthat of the youth who are highly educated,they were also greatly disillusioned with thecurrent crop of elected leaders22.As for blogging, 2017 demonstrated thatbloggers create a vast majority of the localcontent; be it in form of videos, blog posts,Social Media sharing and updates, and evenjournalistic news articles23. As the communityexpands, the Bloggers Association of Kenya(BAKE) has continued to organize andempower local content creators. The risingpopularity of the BAKE Awards is evidence ofthis. It began with 13 categories in 2011, andover 400 blogs submitted for nomination.This number has since grown to 10,000blog submissions for 23 categories in 2017,and the inclusion of a further 3 additionalcategories in 201824, demonstrating thegrowing embrace and recognition of bloggingin the country. The previous year’s contestreceived 800,000 votes, with women bloggersbeing awarded the accolade in 8 categories.

Another indicator is the monetization of blogs. For instance, the blog Niaje receiveda substantial investment from What’s GoodStudios (WGS) in late 2016. WGS acquireda stake in Niaje in a reported cash and stockarrangement26. Unfortunately, a similararrangement unravelled during the sameperiod. After a three-month partnershipbetween Ghafla and Ringier Kenya, thecollaboration came to an end in Decemberof 2016, seeing Ghafla revert to its formerwebsite and operational structure27.BAKE has contributed to the sector byincreasing the knowledge of bloggers andSocial Media users on how to be safe onlinewhile creating content. Through its trainingworkshops and fora, BAKE endeavours tomake the online space better and safer byrolling out trainings across the country toensure that online users understand how theinternet and digital platforms work28.These included sessions on digital security,Internet and the Law which were held inNairobi, Nakuru, Kisumu and Mombasa.They achieved the objective of improvingparticipants’ understanding of rights andoffenses related to the Internet within theKenyan legal context. The trainings wereorganized in light of shrinking rights ofKenya’s digital citizens in the face of newrestrictive laws and increased arraignmentof individuals for expressing online opinionswhich authorities deem in breach of the law.Experts also advised those in attendanceabout communications and device protectionpractices including strong passwords, antiviruses, encryption (email and hard disk) andprivacy settings on Social Media accounts29.BAKE, duly accredited by the Law Society ofKenya, also carried out training workshops forlawyers on Internet and the Law to empower 26 http://www.techweez.com/2016/12/09/whats-good-studios-niaje/27 http://businesstoday.co.ke/swiss-media-firm-dumps-ghafla/28 https://www.kachwanya.com/2017/05/26/75081/29 https://www.ifree.co.ke/2017/07/training-empowers-young-bloggers-social-media-enthusiasts-internet-law-digital-security/30 https://www.ifree.co.ke/2017/09/internet-the-law-training-workshop-for-kenyan-lawyers/31 http://www.techweez.com/2017/06/30/Kenyan-developer-leveraging-telegram-bots-for-polling/32 https://medium.com/lets-ongair/introducing-uchaguzi2017-bot-7c5907e8ecce33 https://medium.com/lets-ongair/introducing-uchaguzi2017-bot-7c5907e8ecce them with knowledge on concepts such asfreedom of expression, digital rights and accessto information. The training workshops whichwere held in Nairobi and Mombasa in late2017 produced a pool of advocates with thenecessary technical knowledge to competentlyrepresent and advise bloggers, journalists andKenyans online on freedom of expressionrelated matters30.

Other notable developments:

As regards Telegram, a Kenyan softwaredeveloper leveraged the ‘rise of the botsrevolution’ and developed a bot thatcould perform election polls countrywide,addressing expense and time challengesexperienced by market research companies31.With regards to voter education,Ongair created a way to enhance discovery ofpolitical aspirants through the conversationalinterface on Telegram. The #UchaguziBot 32allowed voters to ask a ‘bot’ questions to find out which candidates were running fordifferent positions in their county with aquestion as simple as, “Who is running forMP in Kajiado?” or even, “Kajiado MPs”and would be provided with a list of MPcandidates in Kajiado county and anywhereelse. Given that IEBC’s gazetted list ofcandidates on their website was 438 pageslong and 119 MB in size, the bot was warmlywelcomed as it facilitated easy access to thelist of candidates vying.33.It is worth mentioning that, podcastinghas arrived in Kenya. A far cry from the early‘Silicon Savannah’ days six years ago whenpodcasts seemed to be an inaccessible mediumonly available to people with Apple devices,now anyone with an internet connection andsmart-enough phone can tune in to be informedand entertained by people they probably know Page 9 State of the Internet in Kenya 2017 7 personally, talking about subjects they relateto. A survey34 conducted found that as ofJanuary 2017, the total number of listenersfor six podcasts was 2,046.Another significant development is thegrowth of vlogging in the country. A videoblog or video log, usually shortened to vlog, isa form of blog for which the medium is video,and is a form of web television35. Vloggingis an industry that has become popular inrecent years as a form of digital storytelling36.Whether undertaken as a hobby or career, 34 https://www.iafrikan.com/2017/03/09/the-dawn-of-podcasting-in-kenya/35 https://en.wikipedia.org/wiki/Video_blog36 https://www.blog.bake.co.ke/2018/01/18/need-know-start-vlogging/37 https://hapakenya.com/2017/04/10/20-kenyan-youtubers-that-you-should-be-watching/38 https://www.blog.bake.co.ke/2018/01/18/need-know-start-vlogging/39 http://internetrightsandprinciples.org/site/charter/40 Both instruments make specific mention of the rights of women and children as groups requiring additional protection.41 africaninternetrights.org42 Others include the Convention on the Elimination of All Forms of Discrimination against Women of 1979, the Convention on the Rights of the Child of1989; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 and the International Convention on theElimination of All Forms of Racial Discrimination of 1965. (Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx)43 This also includes the Optional Protocols to CEDAW, the ICCPR and the ICESCR, both of 1966. many Kenyans have taken advantage of thevideo-sharing sites YouTube to create contenton themes such as tech, fashion and beauty,health and fitness, food and travel, parenting,lifestyle, and comedy and entertainment.Having a YouTube channel has been shownto be beneficial in that it could earn youexposure as well as an income37. BAKEAwards added a category for the best vlogin 2018, allowing established vloggers toshowcase their work and gain recognitionby their peers and viewers for it38.

THE DIGITAL RIGHTS LANDSCAPE:

Regional and international protection of online rights:

There exists a normative framework governing digital rights and freedoms at theinternational and regional levels, a digitalbill of rights if you will. For example, on theglobal scale, the Charter of Human Rightsand Principles for the Internet39 identifiesinternet policy principles which are necessaryto fulfil human rights in the Internet age. TheCharter codifies freedom of expression andinformation on the internet; right to privacyand digital data protection; right to non-discrimination in internet access, use andgovernance; right to liberty and security onthe internet, among others40. On the continent, the African Declarationof Internet and Freedoms41 (ADIRF) is a Pan-African initiative to elaborate on the principleswhich are necessary to uphold human andpeople’s rights on the continent and cultivatean environment that can best meet Africa’ssocial and economic development needsand goals. The ADIRF outlines much thesame human rights standards as the Charter.Other regional documents of note include theAfrican Union Convention on Cybersecurityand Personal Data Protection.These instruments are anchored in thecore42 international human rights treatiessuch as the Universal Declaration of HumanRights of 1946, the International Covenanton Civil and Political Rights of 1966, andthe International Covenant on Economic,Social and Cultural Rights of 196643.Other specialized human rights documentsinclude the 2011 report of the UN SpecialRapporteur on freedom of expression, FrankLa Rue, the 2012 landmark decision by theUN Human Rights Council on human rightsand the internet, the 2016 UN General Page 10 State of the Internet in Kenya 2017 8 Assembly Resolution44 on the promotion,protection and enjoyment of human rightson the Internet, and the 2017 report of theUN Special Rapporteur on promotion andprotection of the right to freedom of opinionand expression, David Kaye45.Article 2 (specifically sub-articles (5) and(6)) of the Constitution state that the generalrules of international law and any treaty orconvention ratified by Kenya shall form partof the law of Kenya under this Constitution.

Digital rights in Kenya:

Mapping the country’s digital rights terrain firstly entails an outline of theinstitutions, policies, legislations andregulations governing the ICT46 sector, andthe developments that took place betweenNovember 2016 and December 2017. Thepresent mapping exercise also includesan exposition of the legal frameworkgoverning and/or affecting online freedomof opinion, assembly and expression, accessto information and right to privacy, as wellas the corresponding offences.

Kenya ICT Laws

Draft National ICT Policy47 – The Ministry of Information, Communications andTechnology announced that it had embarkedon a review of the National ICT Policy of 2006due to the rapid change and dynamic natureof technology, and in order to streamlineit with emerging developments in the ICTsector. In January 2017 it was revealed thatthe review of the policy was also motivated by 44 Resolution A/HRC/32/L.20 is available at https://documents-dds-ny.un.org/doc/UNDOC/LTD/G16/131/89/PDF/G1613189.pdf?OpenElement45 https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2017/06/Kaye-Report-March-2017-AHRC3522.pdf46 ICTs are often (mistakenly) used synonymously with computers and/or the internet. This research employs UNESCO’s much broader definition. ICTswill refer to “forms of technologies that are used to transmit, process, store, create, display, share or exchange information by electronic means.[they include technologies such as] radio, television, video, DVD, telephone (both fixed line and mobile phones), satellite systems, and computer andnetwork hardware and software, as well as the equipment and services associated with these technologies, such as video-conferencing, email andblogs.”47 http://icta.go.ke/pdf/National-ICT-Policy-20June2016.pdf48 http://www.ict.go.ke/government-reviewing-ict-policy/49 https://www.researchictafrica.net/countries/kenya/CCK_Guidelines_for_prevention_of_transmission_of_undesirable_bulk_political_messages_content_via_cellular_mobile_networks_-_2012.pdf50 https://www.businessdailyafrica.com/economy/Social-media-hate-mongers-face-Sh1m-fine-in-NCIC-plan/3946234-3990070-10rqto9/index.html51 http://www.techweez.com/2017/07/25/kenya-government-social-media-hate-speech-regulation/52 http://blog.cipit.org/2017/07/18/a-review-of-the-communications-authority-guidelines-for-dissemination-of-political-text-messages-and-social-media-content/ the need to have more ICT companies operateat the county level and for listing in the stockmarket48. Draft Guidelines for Prevention ofDissemination of Undesirable BulkPolitical SMS and Social Media Contentvia Communications Networks (2017)49 – the National Cohesion and IntegrationCommission (NCIC) and the CommunicationsAuthority co-authored guidelines on contentregulation during the election period. Seekingto quell hate speech, it stated that “all SocialMedia shall be written using a civilisedlanguage that avoids a tone and words thatconstitute hate speech, ethnic contemptand incitement to violence”. In addition,those publishing content on Social Mediawere obliged to authenticate the source andtruthfulness of their content, to forestallmisleading rumours50.Further, “Social Media platformadministrators” would be held responsiblefor moderating and controlling any form ofhate speech shared in their groups. It wasrevealed that the two bodies had sent outwarnings to 21 group administrators on thesame51. A laudable move was the safe habouroffered to publishers of political content onSocial Media platforms, allowing them toliaise with NCIC when unsure whether thecontent they want to publish is inflammatory.NCIC was required to reply to these querieswithin 24 hours52.However, BAKE took great issue withthe incompatibility of the guidelines with Page 11 State of the Internet in Kenya 2017 9 the 2016 Geoffrey Andare53 case whichdetermined that an authority cannot imposesanctions on entities it does not license.Secondly, the limitations did not conformwith those envisaged by the Constitution,noting that the terms “civilised language”,“intimidating” are not known in law, andhave no objective and ordinary meaning. Afurther objection by BAKE concerned therequirement for correct identification whenpublishing political messages, which it termedas an affront to the right to privacy and theright to freedom of expression54. Kenya (Information and Communications)Registration of SIM cards Regulations(2015)55 – the stated object of the regulations was to provide a process for the registrationof existing and new subscribers oftelecommunication services provided by telcolicensees. The move was ostensibly introducedto combat fraud, money laundering andterrorism. However, some are of the viewthat anonymity is compromised by mandatorySIM card registration requirements. In2017, Safaricom is reported to have beganvisually documenting anyone registeringfor or renewing a SIM card56. The threat toanonymity is further exacerbated by the factthat the communications regulator is granted57with access to service providers’ offices andrecords without a court order, raising concernsover the lack of judicial oversight58.The original regulation was reinforcedby a public notice59 issued in January 2017. 53 Geoffrey Andare v Attorney General & 2 others [2016] eKLR (Available at http://kenyalaw.org/caselaw/cases/view/121033/)54 https://www.ifree.co.ke/2017/07/statement-by-bake-on-cas-guidelines-for-prevention-of-dissemination-of-undesirable-bulk-political-sms-and-social-media-content-via-electronic-communications-networks/55 http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/163-Kenya_Information_and_Communications_Act__Registration_of_Sim-Cards__Regulations__2015.pdf56 Interview with Safaricom agents, cited in Freedom of the Net report, 2017 (Freedom House) Available at https://freedomhouse.org/report/freedom-net/2017/kenya57 Vide section 13, KICA, Available at http://www.ca.go.ke/images/downloads/sector_legislation/Kenya%20Information%20Communications%20Act.pdf58 Freedom of the Net report, 2017 (Freedom House) Available at https://freedomhouse.org/report/freedom-net/2017/kenya59 http://www.techweez.com/2017/01/06/sim-card-registration-kenya-2/60 http://www.ca.go.ke/index.php/component/content/category/97-statutes-regulations61 https://citizentv.co.ke/business/ca-drafts-rules-allowing-use-of-foreign-sim-cards-168141/62 http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2017/ComputerandCybercrimesBill_2017.pdf63 Mapping the Cyber Policy Landscape: Kenya Available at https://www.gp-digital.org/publication/mapping-the-cyber-landscape-kenya/64 http://www.ict.go.ke/cabinet-approves-cyber-security-bill/65 http://kenyalaw.org/kenya_gazette/gazette/download/Vol.CXIX-No_.78_.pdf66 http://www.parliament.go.ke/the-national-assembly/house-business/votes-and-proceedings/item/download/4049_14b580f348e9e5ea1192fdd3cdaf3d01 The Communications Authority listed sevenprecautions to be followed by SIM cardowners, failure to which one would suffera penalty of six-month imprisonment, a fineof Ksh. 100,000 or both. Later in June, theAuthority announced it was consideringplans60 allowing for the sale and use of foreignSIM cards ‘to tame the misuse of foreignSIM cards in the country and will serve asa means of ensuring that all SIM cards areregistered’61. The Kenya Computer and CybercrimesBill (2016)62 – it sought to provide for offences relating to computer systems; andto enable timely and effective collection offorensic material for use as evidence. The billborrows heavily from the Council of EuropeConvention on Cybercrime CETS (BudapestConvention) with the aim of aligning it withinternational standards and streamlininginternational cooperation efforts. The lawhighlights a number of offences, some ofwhich are already housed under the KICA.It addresses access-related offences, andalso looks to incorporate more content-related offences such as cyberstalking andcyberbullying, not previously covered inexisting laws63. In addition, it assigns finesand jail terms for the listed offences. The billreceived Cabinet approval64 in April, and itwas gazetted in June vide Gazette Vol. CXIX—No. 7865, dated 16th June 2017. The Billwent through First Reading on October10th 2017 and was referred to the relevantdepartmental committee66. Page 12 State of the Internet in Kenya 2017 10 The Information Communication TechnologyPractitioners Bill (2016)67 – the object of the bill was to provide for the training, licensing,registration, practice and standards for ICTpractitioners. The ICT Cabinet Minister hadinitially opposed the Bill on the groundsthat “if enacted, [it] will cause duplicationin regulation and frustrate individual talentsfrom realizing their potential.” However,the Minister, speaking in December 2017changed his tune, stating that that the recentlyconcluded elections shed light on severalissues that needed to be addressed, “especiallythe unsubstantiated reports of alleged IEBChacking by the NASA team which was sentto over 200 countries and embarrassed thecountry because the claims were unfounded.”He added that “it would not have been soif the government had credentials of suchindividuals”68.Other laws include the Kenya Information and Communications Act (CAP 411A)69. Relevant documents are the Ministry of Information, Communications andTechnology’s Strategic Plan (2013-2017)70 and the Kenya National ICT Master Plan(2013/14-2017/18)71. The Draft Kenya Information and Communications Act(Cybersecurity) Regulations 2016 and DraftKenya Information and CommunicationsAct (Electronic Transactions) Regulations2016 would create a number of Internet- specific offences and substantive regulatoryobligations for Internet intermediaries andtelecommunications providers72.The relevant institutions/agencies are: TheMinistry of Information, the Communicationsand Technology; the CommunicationsAuthority of Kenya; the Kenya ICT Authority;the National Communications Secretariat.These are in addition to the ComputerIncident Response Team (KE-CIRT) and theCybersecurity Committee (NKCC). 67 http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2016/InformationCommunicationTechnologyPractitioners_Bill_2016.pdf68 http://www.techweez.com/2017/12/04/ke-ict-practitioners-bill-2016/69 http://www.ca.go.ke/images/downloads/sector_legislation/Kenya%20Information%20Communications%20Act.pdf70 http://www.ict.go.ke/downloads-2/71 http://www.ict.go.ke/downloads-2/72 https://www.article19.org/data/files/medialibrary/38413/Kenya-Cyber-Security-and-Electronic-Transactions-Legal-Analysis-21-April-2016.pdf73 https://www.businessdailyafrica.com/economy/Kenyan-firms-slow-in-enforcing-Access-to-Information-Act/3946234-3955564-126nyqy/ Kenya laws affecting freedom ofexpression, opinion and the media; and theright to access to information and privacy The Bill of Rights – Chapter Four of the Constitution of Kenya enshrines the rightto privacy, freedom of opinion, freedom ofexpression, freedom of the media, accessto information, and freedom of associationunder Articles 31 – 36 respectively. Kenya Access to Information Act (No. 31 of2016) – it is an Act of Parliament to give effect to Article 35 of the Constitution; toconfer on the Commission on AdministrativeJustice the oversight and enforcementfunctions and powers and for connectedpurposes. This progressive law also providesfor the protection of persons who discloseinformation of public interest in good faith.In addition, it provides a framework publicentities and private bodies to i) proactivelydisclose information that they hold and toprovide information on request; ii) facilitateaccess to information held by private bodies.Although the law took effect on September21, 2016, the Ministry has yet to gazetteregulations on cost, time and designationof bodies as either public or private. Itsimplementation has been painfully sluggish.So much so that the Ombudsman is reported73to have warned private companies thatthey face a Ksh. 0.5 million fine and anembargo from transacting business with thenational or county governments if they failto disclose information as required, leadingto companies scrambling to comply with thelaw. Entities obliged to make informationpublic on request include those which receivetaxpayer funds, companies which providepublic services such as telcos and banks, andthose exploiting natural resources such as oiland mineral wealth. Page 13 State of the Internet in Kenya 2017 11 As mentioned, the institution charged withthe responsibility of oversight and enforcementof the right to access to information is theCommission on Administrative Justice/Office of the Ombudsman. The Commissionhas developed a reporting framework whichis meant to guide the implementation ofresolution of public complaints indicatorand compliance with access to informationobligations by public institutions74. The Data Protection Bill (2013)75 – the bill is meant to give effect to Article 31 (c) and (d)of the Constitution of Kenya, and regulatethe collection, retrieval, processing, storage,use and disclosure of personal data. The needfor a standalone legislation governing privacyand data protection cannot be understated;yet four years down the line no progress hasbeen made towards its enactment. Currently,there are various pieces of legislation thathouse provisions of privacy, such as theConsumer Protection Act (2012), and others.There is an urgent need for its enactmentowing to the changes introduced by the GeneralData Protection Regulation (Regulation (EU)2016/679) which takes effect on the 25th ofMay 2018. Albeit a European Union (EU)regulation, the GDPR will have implicationsfor countries like Kenya, as it will operateextra-territorially so as to apply to EU datasubjects engaging with businesses domiciledwithin the EU, irrespective of their location.Not only do the regulations apply outside ofthe EU borders, they also carry very hefty finesfor non-compliance. It is therefore imperativethat Kenya develops comprehensive dataprotection legal and regulatory frameworksto ensure that cross-border transactions withthe EU are not affected76. 74 http://www.ombudsman.go.ke/wp-content/uploads/2017/07/7th-Edition-PC-Guidelines-3.pdf75 http://icta.go.ke/data-protection-bill-2012/76 http://www.e-comlaw.com/data-protection-law-and-policy/article_template.asp?from=dplp&ID=1655&Search=Yes&txtsearch=issues77 http://www.mediacouncil.or.ke/en/mck/index.php/publications/media-laws/viewdownload/9-media-laws/30-the-kenya-information-and-communications-amendment-act-201378 http://kenyalaw.org/caselaw/cases/view/122358/79 https://www.ifree.co.ke/2017/03/communication-and-multimedia-appeals-tribunal-takes-shape/80 In 2014, the ICT Cabinet Secretary had been estopped from appointing a chairman and members to the Appeals Tribunal and the ComplaintsCommission by the High Court (https://www.nation.co.ke/news/Court-blocks-media-council-jobs/1056-2168430-vnuq1cz/index.html) The Media Council (Amendment) Act(2013)77 Act applies to media enterprises, journalists, media practitioners, accreditedforeign journalists as well as the consumersof media services.It should be recalled that the High Courtin Nation Media Group Limited & 6 others v Attorney General & 9 others [2016] declared specific provisions of the MediaCouncil Act and the Kenya Informationand Communications (Amendment) Actunconstitutional. It found that section 3(2)(a) of the Media Council Act was “anunjustifiable limitation of the right to freedomof expression” and that the language insection 6(2) (c) was “couched in a mannerthat [was] vague and broad and that [was]likely to limit the freedom of expression”78.The institutions associated with the mediainclude the Media Council and the ComplaintsCommission which are established by theAct, as well as the Communication andMultimedia Appeals Tribunal which was fullyconstituted in 201779 / 80.The Media Council (Amendment) Act,2013 states that “a person aggrieved by anypublication or conduct of a journalist or mediaenterprise” may make a written complaint tothe Tribunal setting out the grounds for thecomplaint, nature of the injury or damagesuffered, and the remedy sought. Bloggerswho fall within the definition of journalistsas publishers, as well as those who fall withinthe category of media enterprises owing to thefact that they write news and have employees,will be subject to the law. The Act imposes afine of not more than Ksh. 20 million on anymedia enterprise and a fine of not more thanKsh. 500, 000 on any journalist adjudged Page 14 State of the Internet in Kenya 2017 12 to have violated the Act.81 The Tribunal isalso mandated to hear matters brought bya journalist or media enterprise where it isalleged that actions limit or interfere with theconstitutional freedom of expression of suchjournalist or media enterprise82.The multiplicity of regulatory mechanismsis worth mentioning - two regulatory bodiesare established under the different Acts; theComplaints Commission under the MCA,and the Communications and MultimediaAppeals Tribunal under the KICA. The twobodies both regulate broadcasting standards,monitor compliance and penalty directedat journalists for any opinion, views, orcontent of any broadcast or publication.This identical and concurrent jurisdictionmay lead to administrative inefficiency andeven potentially violate bloggers’ and others’right against double jeopardy83. Copyright (Amendment) Bill (2017)84 – the bill represents a conscious effort to protectthe rights of copyright owners by seekingto amend the Copyright Act. In the age ofthe BitTorrent network, indexing sites andstreaming sites, copyright owners the worldover struggle to protect their copyright ondigital and online platforms. Enacting lawswhich recognize and protect the economicand moral rights of authors, is only halfthe battle; enforcement is the other. For thisreason, countries are looking to InternetService Providers to uphold copyrightprotection given the key role they play inavailability of content, Kenya included.85According to the memorandum of objects and 81 This means that only when the bloggers are legally defined, expressed or proven to be media enterprises will the law apply. (https://www.ifree.co.ke/2017/03/communication-and-multimedia-appeals-tribunal-takes-shape/)82 https://www.ifree.co.ke/2017/03/communication-and-multimedia-appeals-tribunal-takes-shape/83 https://su-plus.strathmore.edu/bitstream/handle/11071/5247/Limitations%20on%20media%20freedom%20-%20Are%20the%20current%20media%20laws%20in%20compliance%20with%20the%20constitution%20of%20Kenya.pdf?sequence=184 http://bcckenya.org/assets/documents/The%20Copyright%20Bill%202017.pdf85 http://blog.cipit.org/2017/11/06/internet-service-providers-to-be-enlisted-in-fight-against-piracy-in-kenya/86 http://kenyalaw.org/lex/rest//db/kenyalex/Kenya/Legislation/English/Acts%20and%20Regulations/D/Defamation%20Act%20Cap.%2036%20-%20No.%2010%20of%201970/docs/DefamationAct10of1970.pdf87 http://kenyalaw.org/lex/sublegview.xql?subleg=CAP.%205788 http://kenyalaw.org/lex//actview.xql?actid=No.%2012%20of%20200889 The Internet Legislative and Policy Environment in Kenya, Kenya Human Rights Commission, 2014 Available at http://www.khrc.or.ke/mobile-publications/civil-political-rights/34-the-internet-legislative-and-policy-environment-in-kenya/file.html.90 State of Internet Freedom in East Africa, 2014 (CIPESA) Available at https://www.cipesa.org/?wpfb_dl=7691 http://www.kenyalaw.org/lex//actview.xql?actid=No.%203%20of%20200692 Section 12 of the Act, Available at http://www.kenyalaw.org/lex//actview.xql?actid=No.%203%20of%202006 reasons, one proposed amendment to the law(Clause 19) would be the introduction of newsections 35A, 35B and 35C to provide for theprotection of ISP through provisions dealingwith ISP liability, safe harbour, takedown andthe resultant offences. Other relevant laws Other legislations have ICT and/or digitalrights related provisions such as Defamation Act (CAP 36)86, section 4 (2) (d) of thePreservation of Public Security Act (CAP57)87, and sections 13 & 62, NationalCohesion and Integration Act (No 12 of2008)88. The limitation of rights under these sections as public safety measures, whichare usually invoked under extraordinarycircumstances, are nevertheless used toarrest and detain journalists for work whichcriticizes authorities’ actions or publishesunfavourable political opinions89. One canmake this deduction after closer examinationof the incidents where these laws have beeninvoked. The evidence suggests that often,the primary interest of authorities lies muchcloser to stifling legitimate expression90than maintaining public order and safety.Another law is the Sexual Offences Act of 200691 which prohibits92 child pornography, including its promotion and distribution.Regarding the laws mentioned, theconcerned authorities include the NationalCohesion and Integration Commission, theNational Intelligence Service, the KenyaPolice Service, and the Office of the Directorof Public Prosecutions.

HUMAN RIGHTS AND THE INTERNET

93 https://en.wikipedia.org/wiki/Digital_rights94 IRPC Charter of Human Rights and Principles for the Internet Available at http://internetrightsandprinciples.org/site/charter/95 Article 24, Constitution of Kenya, 201096 Kenya scored 29 out of 100 (0 being most free, 100 being least free) Available at https://freedomhouse.org/report/freedom-net/2017/kenya The regional and international instrumentsoutlined above constitute a frameworkanchored in international human rights forexercising, enforcing and advancing humanrights for the online environment. Internet ordigital rights allow and facilitate individualsto access, use, create, and publish digitalmedia or to access and use electronic devices,or communications networks93. In addition torights, there also exist a set of internet policyprinciples or implementation principles thatdescribe features of the system which arerequired to support human rights94.The most common rights and freedomsassociated with the internet are thefreedom of opinion, expression, assemblyand association, the media, the right toinformation, data protection and privacy.Internet principles govern openness, accessand affordability and even security, stabilityand resilience of the internet. One feature ofhuman rights is that they are interrelated,interdependent and indivisible. Therefore,when they interact, and are subsequentlytranslated to the internet, we extrapolateprovisions such as freedom from surveillance,content controls and takedowns, censorship,shutdowns, blocking and/or filtering, anduser information requests.Rights and freedoms come withcorresponding responsibilities and duties. Onesuch responsibility is that the enjoyment ofone’s rights must not prejudice those of another;in which case States may enact laws whichlimit certain rights where it is reasonable andjustifiable to do so, or in the public interest95.The need to combat terrorism, hate speechand incitement to cause violence, alarming orobscene material and fake news have oft beencited as justifications for State limitations ofdigital access and content.The below analysis of the status of theinternet and digital rights in the countrywill include a review of the exercise andenforcement of rights by users, as well as themeasures, tactics and limits imposed by thegovernment which infringe on the enjoymentof the said rights. On balance, Kenya’sinternet was described as “relatively free”96in Freedom House’s most recent Freedom ofthe Internet report. Freedom of Opinion andExpression Online in Kenya in2017 Frank La Rue, former Special Rapporteur onthe promotion of and protection of the right tofreedom of opinion and expression providedguidance on the use of “new informationand communication technologies, includingthe internet and mobile technologies, for theexercise of the right to freedom of opinion andexpression, including the right to seek, receiveand impart information and the relevance ofa wide diversity of sources, as well as accessto the information society for all”.The Special Rapporteur explained thatany limitation to the right to freedom ofexpression must pass the following three-part, cumulative test:(a) It must be provided by law, which is clearand accessible to everyone (principles ofpredictability and transparency);(b) It must pursue one of the purposes set outin the ICCPR, namely to protect the rightsor reputations of others, or to protectnational security or of public order, orof public health or morals (principle oflegitimacy); and(c) It must be proven as necessary and theleast restrictive means required to achieve the purported aim (principles of necessityand proportionality).Further, any law seeking to restrict the rightto freedom of expression must be applied bya body which is ‘independent of any political,commercial, or other unwarranted influencesin a manner that is neither arbitrary nordiscriminatory, and with adequate safeguardsagainst abuse, including the possibility ofchallenge and remedy against its abusiveapplication’.Legitimate types of information which maybe restricted include child pornography (toprotect the rights of children), hate speech (toprotect the rights of affected communities),defamation (to protect the rights and reputationof others against unwarranted attacks), directand public incitement to commit genocide (toprotect the rights of others), and advocacyof national, racial or religious hatred thatconstitutes incitement to discrimination,hostility or violence (to protect the rights ofothers, such as the right to life).In Kenya, the Constitution, at Article 33provides that every person has the right tofreedom of expression, which includes—(a)freedom to seek, receive or impart informationor ideas; (b) freedom of artistic creativity;and (c) academic freedom and freedom ofscientific research.The Constitution also states that the rightto freedom of expression does not extend to—propaganda for war; incitement to violence;hate speech; or advocacy of hatred that—constitutes ethnic incitement, vilification ofothers or incitement to cause harm; or is basedon any ground of discrimination specified orcontemplated in Article 27 (4). In the exerciseof the right to freedom of expression, everyperson shall respect the rights and reputationof others. Article 32 (1) on the other hand states that every person has the right to freedomof conscience, religion, thought, belief andopinion. 97 Constitution of Kenya, 2010 With the legal and human rightsunderpinnings in mind, below is an expositionof the exercise of the rights of freedom ofexpression and opinion, and governmentresponse to the same in 2017. Hate speech: Article 33 (2) (c) and (d) limits the right tofreedom of expression where it amountsto hate speech; or advocacy of hatred thatconstitutes ethnic incitement, vilification ofothers or incitement to cause harm; or isbased on any ground of discrimination97.Section 13 of the National Cohesion andIntegration Act (No. 12 of 2008) creates theoffence of hate speech. It is defined as the useof words or behaviour that is threatening,abusive or insulting or involves the use ofthreatening, abusive or insulting words orbehaviour, if such person intends therebyto stir up ethnic hatred, or having regard toall the circumstances, ethnic hatred is likelyto be stirred up. It specifies that the wordsand behaviour include programmes, imagesor plays. It further goes on to prescribethe penalty for contravention as a fine notexceeding Ksh. 1 million or imprisonment fora term not exceeding three years, or both.Section 62 of the Act outlines the offenceof ethnic or racial contempt thus: “any personwho utters words intended to incite feelingsof contempt, hatred, hostility, violence ordiscrimination against any person, group orcommunity on the basis of ethnicity or race”.Should one be convicted, they face a fine notexceeding Ksh. 1 million, or to imprisonmentfor a term not exceeding five years, or both.Even amidst regulatory interventions bygovernments and internet companies, it hasbecome apparent that some cunning netizenshave ingeniously identified loopholes to exploitand gone on to propagate inflammatorymessages. Take Facebook for instance. Withover 2,000 languages and dialects in use onFacebook, and even though it utilizes contentmoderators for its pages, it has provedimpossible to flag all hateful content on the site. Secondly, the sheer number of users onthe platform versus those who report illegalcontent is disproportionate, leaving many postsunflagged. Lastly, it is common knowledgethat some users register fake accounts and hidebehind anonymous profiles to post threats andunsavoury comments which further makes itdifficult to prosecute98.Beyond Facebook, other challenges inenforcement cited include low competence,minimal to no political will, and lack of theappropriate technology to rein in onlinehate speech. Further, the comprehensionof enforcement officers on what preciselyconstitutes hate speech and its delineationwith free speech is inadequate99.Over the reporting period, severalinvestigations, arrests and detentions weremade by the authorities over propagationof hate speech. For instance, and pursuantto the Communications Authority directiveon curbing hatespeech, Paul Odhiambo,aka Amemba, a Facebook commentator,was arrested for allegedly publishinginflammatory messages on the platform. Itwas reported that his phones were confiscatedto aid investigations over some posts aimedat propagating animosity between somecommunities in Busia100. Similarly, MeshackKipchirchir Korir was charged with ethniccontempt for publishing, on Facebook, apost which the police said, “was calculatedto stir up ethnic hatred between Kalenjincommunity and the Kikuyu community”101.The next month, in August, a MalindiCourt allowed the police to detain a WhatsAppadministrator, a Mr. Japheth Mulewa. Hewas accused of sharing hate messages andthreatening violence against members of 98 https://www.businessdailyafrica.com/corporate/companies/Gap-Kenyan-law-stokes-hate-speech-social-media/4003102-4012060-9gsi41/index.html99 State of Internet Freedom in Kenya, 2017 (CIPESA) Available at https://cipesa.org/?wpfb_dl=254100 https://www.ifree.co.ke/2017/07/paul-odhiambo-arrested-publishing-inflammatory-messages-facebook/101 https://www.ifree.co.ke/2017/07/meshack-kipchirchir-korir-charged-for-content-published-on-facebook/102 https://www.ifree.co.ke/2017/08/whatsapp-group-admin-malindi-detained-sharing-hate-messages/103 https://www.ifree.co.ke/2017/08/longton-jamil-held-kajiado-suspicion-spreading-hate-messages-whatsapp/104 https://www.ifree.co.ke/2017/08/robert-alai-held-incitement-violence/105 https://www.ifree.co.ke/2017/09/oliviah-nyabwazi-moraira-held-hate-speech/106 https://twitter.com/KinyanBoy107 http://www.monitor.co.ke/2016/10/18/dennis-owino-held-police-six-hours-without-reason/ a particular community in the area. Hismessages apparently had the potential tocause panic and threaten national security.Mr. Mulewa was detained for a period of fivedays to complete investigations102. Elsewhere,in Kajiado, Longton Jamil was also held inpolice custody on suspicion of spreading hatemessages. He was the WhatsApp administratorof a group ‘Kajiado Unity of Purpose’ whichthe police allege he shared hate messages in it.The police said they were investigating Jamilover a post on the WhatsApp group detailinghow several people were killed in the countryafter the announcement of presidentialresults. He insisted that the post was basedon information provided by the KenyaHuman Rights Commission on national TVstations without any alteration103. Withinthe same month, Robert Alai was arrestedover ‘incitement to violence’ allegations.His arrest was however, widely believed tobe in connection to an article he publishedconcerning the death of a member of the firstfamily, accompanied with images 104.Facebook user Oliviah Nyabwazi Morairaaka Kabz Nyar Kisii was in October arrestedover hate speech allegations. She allegedlyposted ethnically inciting words on Facebookknowing that they would promote hatebetween different tribes105. Blogger DennisOwino, popularly known as @KinyanBoy106was arrested and held for six hours withoutbeing told the reason for his arrest, and laterreleased without charge107. Misinformation and content manipulation: During the 2017 elections season, Social Mediaenabled opinion influences to proliferate,unfortunately leading to online manipulation and, at times, overt disinformation108, asSocial Media is the dominant source of fakenews stories. OdipoDev research revealedthat Whatsapp played a major role in massdistribution of these stories, as compared toother social networking platforms109. KennedyKachwanya, the BAKE Chairperson, attributesthis to the fact that WhatsApp has a larger userbase than other platforms. He also links thisto both the use of bots as well as individualswhose inclination is towards sharing of poststhat are relatable. Besides being more pervasivethan any social network in Kenya, Whatsappis also fast, simple, and much more intimate,compared to say Facebook or Twitter. Thesefactors rapidly increase a fake news story’sinfluential power110.Of course, access to accurate information isa critical facet of a modern democracy, in thatin enables one to make informed choices; wherethis is absent or otherwise not guaranteed, itmay lead to undue influence over elections andpotentially skew results. This potential impact,along with the rise of Social Media as sourceof news, prompted the government to attemptto regulate the spread of falsehoods.Privacy International, a human rightsNGO, published its report “Texas mediacompany hired by Trump created Kenyanpresident’s viral ‘anonymous’ attack campaignagainst rival”111. The investigative reportrevealed the role of an American data-baseddigital advertising company in the highlydivisive online re-election campaign of Kenyanpresident Uhuru Kenyatta. In the run-up toKenya’s presidential election in August 2017,paid advertisements for two mysterious sitesdominated Google searches for election-relatedterms and flooded Kenyans’ Social Mediafeeds. They linked back to either ‘The RealRaila’, a virulent attack campaign alleging that 108 Freedom of the Net 2017 (Freedom House) Available at https://freedomhouse.org/report/freedom-net/freedom-net-2017109 https://medium.com/@OdipoDev/3-things-we-discovered-from-3-months-of-investigating-fake-news-in-kenya-dfaa6f4e1857110 https://medium.com/@OdipoDev/3-things-we-discovered-from-3-months-of-investigating-fake-news-in-kenya-dfaa6f4e1857111 The investigative report is available at https://privacyinternational.org/node/954112 https://www.ifree.co.ke/2017/12/investigation-reveals-the-role-of-a-texan-company-in-the-re-election-of-president-kenyatta/113 https://medium.com/@OdipoDev/3-things-we-discovered-from-3-months-of-investigating-fake-news-in-kenya-dfaa6f4e1857114 https://medium.com/@OdipoDev/3-things-we-discovered-from-3-months-of-investigating-fake-news-in-kenya-dfaa6f4e1857 a government headed by opposition leaderRaila Odinga would ‘remove whole tribes’,or to ‘Uhuru for Us’, a softer site showcasingthe President’s accomplishments. The two‘grassroots’ campaigns were created by HarrisMedia LLC, an American far right digitalmedia company, for President Kenyatta’scampaign, as revealed by the new PrivacyInternational investigation112.Separate research113 indicated the opposite- that more outrightly false stories seemed tobe released for opposition-leaning groups inKenya. This is in line with existing theoriesof fake news consumption which state thatopposition groups are more likely to consumefake news than government-leaning groups.However, this only speaks to the source of sucharticles, and does not mean that the articleswere consumed solely by opposition-leaningaudiences, but by government supporters aswell114. It is known that diversity of politicalideologies is critical in a functioning democracy.It is also true that echo chambers cause peopleto seek and consume information that is closeto their own beliefs.Global news outlets BBC and CNN wereforced to issue clarifications after becomingvictims of fake news about the Kenyan election.BBC, whose programme ‘Focus on Africa’ wasmimicked to provide a fake story about theJubilee Party being ahead by a considerablemargin in an opinion poll, distanced itselffrom the clip that has been circulating online.CNN also came out to distance itself from aclip also showing President Uhuru Kenyatta’spopularity surging ahead, “despite his lackof participation in the recent presidentialdebate.” The video, which was actually acut from a CNN Philippines broadcast withthe logo of the broadcaster superimposed onthe rest of the footage, showed that 59.8 per 17 cent of Kenyans prefer President Kenyatta compared to his challenger Raila Odinga115.The Law attempts to stem this situation.This can be seen in the Computer and CyberCrimes draft law which created the offence of“intentionally publishes false, misleading orfictitious data or misinforms with intent thatthe data shall be considered or acted upon asauthentic, with or without any financial gain,commits an offence”. It was also a majorfocus of the Communications Authority’sGuidelines for Prevention of Disseminationof Undesirable Bulk Political SMS andSocial Media Content via CommunicationsNetworks (2017).Other interventions included theeducational tool rolled out by Facebookbefore the election, to assist its users spotand limit the spread of fake news stories onits platform. The company, together with itsWhatsApp platform, placed adverts in someof the country’s national newspapers andradio stations giving consumers tips on howto spot false stories116.Fake news can be described as “falseor misleading information published asauthentic news, generally understood to bedeliberate, however possibly accidental”117. Defamation: The Constitution at Article 33 confers theright to freedom of expression, but qualifiesthat in the exercise of the right, “every personshall respect the rights and reputation ofothers”. The protection of reputation, thatis, the esteem in which one is held by society,is of significant social utility.Defamation laws, while aiming toredress harms to reputation resulting fromspeech – whether spoken aloud, distributedin print, broadcast, or otherwise publiclycommunicated – will necessarily interfere withthe right to freedom of expression. In some 115 https://www.standardmedia.co.ke/business/article/2001249755/cnn-bbc-fall-into-fake-news-trap116 https://qz.com/1044573/facebook-and-whatsapp-introduce-fake-news-tool-ahead-of-kenya-elections/117 Portland, GeoPoll: The reality of fake news in Kenya, 2017 Available at https://portland-communications.com/publications/reality-fake-news-kenya/118 Revised Defining Defamation Principles: Background Paper (Article 19, 2016) Available at https://www.article19.org/data/files/medialibrary/38362/Defamation-Principles-Background-paper.pdf119 Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR Available at http://kenyalaw.org/caselaw/cases/view/130781/ instances, this interference can be justified;while in others, defamation laws can be usedto silence legitimate speech118. Court rulingsin Kenya previously created unfavourableprecedents for access to information andfree speech, resulting in Nairobi once beingdescribed as the ‘libel capital’ of Africa.Punitive suits against journalists and bloggersfor defamation, libel and contempt of courthave been prevalent, especially where thecontent featured exposés on corruption andland related scandals.However, the year 2017 represented abreak from the practise of abusing the justicesystem to suppress freedom of expression.The courts interpreted criminal defamationand the offence of ‘undermining the authorityof a public officer’ to be incompatible withthe Constitution’s provisions. Criminal defamation: The Jacqueline Okuta119 case brought intosharp focus the constitutionality or otherwiseof the offence of criminal defamation createdunder the provisions of section 194 of the PenalCode. Section 194 of the Penal Code providedthat “any person who, by print, writing,painting or effigy, or by any means otherwisethan solely by gestures, spoken words or othersounds, unlawfully publishes any defamatorymatter concerning another person, with intentto defame that other person, is guilty of themisdemeanour termed libel.”The Court, in determining whether theprovision unjustly violated the freedom ofexpression by imposing sanctions on thecivil wrong of defamation, considered thefollowing questions:i) whether criminal defamation was a groundon which a constitutional limitation onthe rights of freedom of the expressioncould be legally imposed; and ii) whether defamation law infringes the rightof freedom of expression guaranteed underthe constitution or whether it constituteda reasonable and justifiable limitationjustifiable in an open democratic society.On the issue of criminal sanctions for atortuous act, Justice John Mativo clarifiedthat defamation of an individual by anotherindividual is a civil wrong for which thecommon law remedy is an action fordamages. He elucidated that fundamentalrights are conferred in the public interest anddefamation of any person by another personis unconnected with the fundamental rightconferred in the public interest and, therefore,Section 194 ought to be construed outside thescope of Articles 33 and 24. The learned judge pronounced that theoffence of criminal defamation indubitablyoperated to encumber and restrict thefreedom of expression enshrined in Article 33of the Constitution. He therefore consideredwhether criminal defamation constituted a“permissible derogation” from that right- concluding that this turned on “whetheror not it was a limitation that is reasonablyjustifiable in a democratic society”.A common way of determining whether alaw that limits rights is justified is by askingwhether the law is proportionate. Afterweighing the chilling effect of criminalizingdefamation, the stifling effect of regulatinginformation flow in the public domainagainst the intended objective of protectingthe reputations, rights and freedoms ofother persons, Mativo J. reckoned that theoffence of criminal defamation constitutesa disproportionate instrument for achievingthat aim. Thus, he was satisfied that criminaldefamation is not reasonably justifiable in ademocratic society within the contemplationof Article 24 of the Constitution, and 120 http://kenyalaw.org/caselaw/cases/view/130781/121 https://www.ifree.co.ke/2017/02/dpp-instructs-the-cid-to-withdraw-all-criminal-defamation-cases/122 https://www.ifree.co.ke/2017/07/court-orders-dpp-to-stop-prosecuting-journalist-kurgat-marindany-under-criminal-defamation/123 https://www.ifree.co.ke/2017/11/lawyer-cecil-miller-sues-ifreedoms-kenya-editor-over-coverage-of-court-case/124 Robert Alai v The Hon Attorney General & another [2017] eKLR Available at http://kenyalaw.org/caselaw/cases/view/135467/ inconsistent with the freedom of expressionguaranteed by 33 of that Constitution120.This landmark decision delivered in early2017 declared criminal defamation charges tobe unconstitutional, as, it would follow, wouldbe its continued enforcement. Pursuant to this,the DPP, in February, directed the Directorof Criminal Investigations to withdraw allpending criminal defamation cases withimmediate effect. The DPP further directed thatthere should be no charges preferred againstany person under the criminal defamation law“until and unless the said judgment has beenreversed or set aside by an Appellate Court”121.However, a few months later, in July, the HighCourt was forced to order the DPP to stopprosecuting journalist Kurgat Marindanyunder section 194122.Another development since the Jacqueline Okuta judgment is the suit instituted against BAKE’s Programs Manager and iFreedomsKenya editor Shitemi Khamadi over coverageof court cases. Lawyer Cecil Miller inNovember brought a case against Shitemiand Njeru (who was the 2nd petitioner) forcontempt of court. Mr. Miller alleged thatthe two were in contempt of a directive bythe court gagging media from publishing thecase, pending hearing and determining ofthe case. It should be noted that the storywritten by Mr. Khamadi was publishedafter the court made a ruling on a previouscontempt of court case against Mr. Njeru.Moreover, the gagging orders forbade Njeruand his associates or agents from publishingthe story. Mr. Khamadi was not and has neverbeen part of the cases123. Undermining the authority of a public officer In the Robert Alai124 case, the spotlight wasturned on the constitutionality of Section132 of the Penal Code. The impugnedprovision states that “any person who,without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints,publishes any words, or does any act orthing, calculated to bring into contempt, orto excite defiance of or disobedience to, thelawful authority of a public officer or anyclass of public officers is guilty of an offenceand is liable to imprisonment for a term notexceeding three years”125.The petition was triggered by thearraignment of Robert Alai for posting“Insulting Raila is what Uhuru can do. Hehasn’t realized the value of the Presidency.Adolescent President. This seat needsMaturity” on Twitter. The publication of thisstatement was allegedly calculated to bringinto contempt the lawful authority of thePresident of the Republic of Kenya, therebycommitting the offence of undermining theauthority of a public officer.Justice Chacha Mwita stated that, wherethe constitutionality of a statute or provisionis questioned, a court is under obligation tomake use of the constitutional mirror layingthe impugned legislation or provision alongsidethe article(s) of the constitution and determinewhether it meets the constitutional test. Thecourt is also to analyse both the purpose andeffect of the Section or the Act, and thereafterascertain whether any of the two could lead tothe provision being declared unconstitutional.In applying the purpose and effect test,the Judge turned his attention to the historyand circumstances under which the impugnedprovision or legislation was enacted. Indoing so, he surmised that the previous aims(enacted at the height of Emergency), “cannotbe the object of section 132 in the currentconstitutional dispensation when people enjoya robust Bill of Rights that has opened thedemocratic space in the country”. He went onto pronounce that the criminalization of anyutterance that would appear to displease thosein public office could not possible be whatKenya’s transformative constitution stands for. 125 Penal Code, CAP 63 Available at http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063126 Introduction to Internet Censorship and Control, Murdoch and Roberts available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268587 “Kenya is a democratic state with ademocratically elected leadership. The peopleof Kenya have a democratic right to discussaffairs of their government and leadershipbecause of their right to freedom of expressionguaranteed by Article 33 of the constitution.They cannot be freely expressing themselvesif they do not criticize or comment abouttheir leaders and public officers”, accordingto Mwita J.He also observed that the very phrase“undermining authority of a public officer”was too general, vague and wide - to theextent of being unclear which circumstanceswould lead to undermining of a public officer’sauthority. The framing of the wrongdoingalso neglected to demonstrate how the act thesubject of section 132 could possibly hinder apublic officer from performing his obligationsunder that office. Citing Geoffrey Andare VsAttorney General (2015), he emphasized thatit is imperative that any and all limitations offundamental rights must be clear and preciseenough to enable individuals to conform theirconduct to its dictate.After analysis of the legal issues, JusticeMwita accordingly declared the impugnedsection 132 to be inconsistent with Articles33, 50 (2) (a), (i), (l) and 25 (c) of theConstitution, in so far as it suppressesfreedom of expression, shifts burden to anaccused, denies an accused the right to remainsilent and derogates the right to fair hearing. Censorship and network disruption Today’s governments’ censorship techniques –including technical, legal, political, and socialtools – and are increasingly effective andwidespread and are used by dictatorships anddemocracies alike126. Here, this report willemploy the terminology ‘internet shutdown’to describe the censorship techniques andinternet control mechanisms utilized by states.

An Internet shutdown may be defined as an“intentional disruption of Internet or electroniccommunications, rendering them inaccessibleor effectively unusable to a specific populationor within a location, often to exert control overthe flow of information”127. A four-prongedtest for network disruptions is that they mustbe: intentional, state sanctioned and result ina shutdown, disruption, or other limitationto a medium of communication. Actionsrange from interfering with internet trafficdirectly (shutdowns, restrictions, throttling)to pressuring hosts to remove offendingcontent (takedowns). Examples of ways thiscan be (and have been) implemented includeInternet Protocol (IP) address blocking128, useof Deep Packet Inspection (DPI) equipment129,Border Gateway Patrol (BGP) attacks130,and Hypertext Transfer Protocol (HTTP)throttling131 / 132.Such measures may well constituteinfringements of a range of universal humanrights. Besides freedom of expression andaccess to information, these courses ofaction may impact upon other rights suchas the freedom to make political choices andparticipate in governance and decision-makingprocesses; and economic and social rights suchas to work and education. They also occasiondirect and ripple economic losses133. Blocking and filtering: The blocking, filtering or prevention of accessto internet content are generally technicalmeasures intended to restrict access toinformation or resources typically hosted in 127 Deji Bryce Olukotun, “Internet Shutdowns – an Explainer.” Available at http://www.dw.com/en/internet-shutdowns-an-explainer/a-36731481128 This is where an Internet Service Provider (ISP) denies access to servers that host specific addresses when users try to communicate with those sites.129 This refers to an instance where equipment reads data passing through a network and hijacks it through equipment known as a “middlebox”. Suchdata never reaches the intended recipient and therefore a user trying to access a site in an ISP that is hijacking certain sites will never reach it.130 Here, the addresses of certain websites or routes to entire networks are taken over illegitimately, thereby corrupting the routes through which data tothose addresses would have been resolved.131 This is the intentional slowing of bandwidth by a service provider. This makes access to throttled sites extremely sluggish, to the point of the sendingnetwork dropping those requests, which translates to the user not accessing the sites in question.132 Building trust between the state and citizens: A policy brief on Internet shutdowns and elections in Kenya 2017, (KICTAnet) Available at https://www.kictanet.or.ke/?sdm_downloads=kenya-policy-brief-on-internet-shutdowns133 CIPESA estimated that over a period of 236 days, internet disruptions in 10 African countries led to loss of US$237 million.134 Blocking, Filtering and Take-Down of Illegal Internet Content, 2016 Available at https://rm.coe.int/168068511c135 Freedom of Expression Unfiltered: How blocking and filtering affect free speech, December 2016 (Article 19) Available at https://www.article19.org/data/files/medialibrary/38586/Blocking_and_filtering_final.pdf136 https://qz.com/878823/a-guide-to-staying-online-if-the-internet-or-social-media-has-been-blocked-in-your-country/137 Building trust between the state and citizens: A policy brief on Internet shutdowns and elections in Kenya 2017, (KICTAnet) Available at https://www.kictanet.or.ke/?sdm_downloads=kenya-policy-brief-on-internet-shutdowns138 Don’t hit the switch: making the case against network disruptions in Africa, 2017. another jurisdiction. Such action is normallytaken by the internet access provider throughhardware or software products that blockspecific targeted content from being receivedor displayed on the devices of customers ofthe internet access provider.134.According to an Article 19 policy brief135,acts of blocking and filtering are notoriouslyineffective, as they involve risks of both over-blocking and under-blocking content and assuch amount to a violation of the right tofreedom of expression.Even so, Internet shutdowns and networkdisruptions have been experienced theworld over, prompting the development anddissemination of handy guides136 detailingwhat measures one could take to stayconnected, should Internet or Social Mediabe switched off in one’s country.Indeed, disruptions were experiencedin over half of the 18 African countriesthat conducted presidential elections in2016 alone – accounting for a third of thecontinent’s 54 nations. Governments givevarious justifications for shutdowns – fromprotection of state institutions and leaders,managing election crises, controlling thespread of propaganda, and mitigating dissentand national security137 to prevention ofcheating during examinations. Others gowholly unexplained. However, one can detectmore sinister motivations behind disruptionssuch as: to quash opposition political partiesand their supporters’ voice, or to muddle theorganization of protests and silence thosewho wish to demonstrate138.

In Kenya, the reporting period coveredpreparation for, and the conduct of botha general election and a fresh presidentialelection. In the run up to August 2017, thetwo main themes around Internet prior toand during an election re-surfaced. First beingthe use of the Internet to spread hate speechonline and the other the use of the Internet tomanipulate media thereby mobilizing votersin some areas while suppressing them inothers139. A combination of these factors, itwas feared, would contribute to poll violence.The Communications Authority ofKenya Director General Francis Wangusinevertheless assured Kenyans that theAuthority was “unlikely” to orchestratean internet shutdown – whether completeor partial. He did confirm that CA was“monitoring the activities of Social Media soas to pull down sites that were created withthe intent to misinform and incite membersof the public”, while urging members of thepublic to be responsible Social Media users140.Indeed, in 2016 the Centre for IntellectualProperty and Information Technology Law(CIPIT) in partnership with Open Observatoryof Network Interference (OONI) ran tests inKenya almost every day to examine whetherinternet censorship events were occurringin the country. Hundreds of thousandsof network measurements were collectedand analyzed. 1,357 URLs were tested forcensorship, including both internationalwebsites and sites that are more relevantto Kenya (such as local news outlets). Yet,after five months of intensive testing fromfour local vantage points in Kenya, the teamfound almost no signs of internet censorshipin the country141.The results of these tests would havesubdued the anxieties of many, if not forthe fact that CIPIT did continue conducting 139 Building trust between the state and citizens: A policy brief on Internet shutdowns and elections in Kenya 2017, (KICTAnet) Available at https://www.kictanet.or.ke/?sdm_downloads=kenya-policy-brief-on-internet-shutdowns140 https://businesstoday.co.ke/govt-to-shut-down-websites-ahead-of-elections/141 https://ooni.torproject.org/post/kenya-study/142 http://blog.cipit.org/2017/03/23/cipit-research-reveals-evidence-of-internet-traffic-tampering-in-kenya-the-case-of-safaricoms-network/143 http://blog.cipit.org/wp-content/uploads/2017/03/Final-March-Brief-pages.pdf network measurements on Kenyan InternetService Providers (ISPs) using assortedtechniques even after the OONI report waslaunched. Between the dates of 6th – 10thFebruary 2017, the data indicated the presenceof a middle-box on the cellular network ofone provider, Safaricom Limited (AS33771)that had not previously presented any signs oftraffic manipulation142. The brief143 explainedthat traffic manipulation (usually an indicatorof middle-box presence) persisted throughend of February to early March 2017.Shortly after reaching out to the companyfor further information on these observations,a technical team from the company deniedthe presence of a middle-box in their data.Stephen Chege, the Safaricom Director ofCorporate Affairs, responded by assuring thatthe company strictly adheres to the correctHTTP format as per agreed global standards(RFC 2616: Section 2.2). He stated that “anycrafted or altered packets that violate theaccepted correct HTTP formats generate anerror. So by [CIPIT] sending a packet thathas its HTTP parameters detuned/altered,they would receive an error [as observed]”.Mr. Chege described a trend wherebysimilar packet crafting methods (such asthe Ooniprobe used by CIPIT) have in thepast been utilized to defraud Safaricom bytunnelling traffic through zero-rated sites,thereby by-passing billing. He explainedthat the ISP takes measures to protect andoptimize quality of user experience, whichdoes not constitute evidence of a middle-box.Within a few days, there was negativeactivity for a middle-box observed. Theapparent absence of tampering signs impliedtwo possibilities: the probable middle-boxwas reconfigured to avoid triggering errorsfrom the invalid http requests, or that thenetwork dropped the probable middle-boxin the network.

Additionally, in the month of October,there were concerns about throttling duringdemonstrations particularly in Nairobi’sCentral Business District, as well asunconfirmed reports of throttling targetingindividuals’ devices. CIPIT’s preliminaryfigures144 pointed towards throttling onthe network. The Centre did qualify this,stating that the results could also have beeninfluenced by network congestion and otherinfrastructure-related factors. More researchis needed determine the nature of throttlingpractices currently being conducted byISPs and thereby to differentiate those thatare business-driven from those that arecensorship-driven145. Takedown and removal of content: Typically, these measures are aimed at:preventing users from accessing certain typesof content to protect them (e.g. child sex abuseimages) or a third party (e.g. privacy violation);or preventing users from downloading illegalmaterial (e.g. ‘pirate’ websites) and potentiallycommitting an offence (e.g. accessing childsex abuse images). In this sense, it can beframed as measures to combat and reducecriminality. Before such measures are adoptedor implemented, however, the key questionthat must be answered is whether such stepsare necessary and proportionate to tackle theproblems they are purported to address146.The Kenya Film Classification Board(KFCB) banned 6 children’s televisionprogrammes for “glorifying homosexual147behaviour in Kenya”. In its June 2017 144 http://blog.cipit.org/2017/10/29/internet-speed-throttling-surrounding-repeat-election/145 http://blog.cipit.org/2017/10/29/internet-speed-throttling-surrounding-repeat-election/146 Freedom of Expression Unfiltered: How blocking and filtering affect free speech, December 2016 (Article 19) Available at https://www.article19.org/data/files/medialibrary/38586/Blocking_and_filtering_final.pdf147 The Kenyan penal code (sections 162, 163 and 165) criminalizes same sex relationships (Available at http://www.kenyalaw.org/lex/actview.xql?actid=CAP.%2063)148 http://kfcb.co.ke/wp-content/uploads/2017/06/STATEMENT-ON-CHILDREN-TELEVISION-PROGRAMMES-PROMOTING-HOMOSEXUALITY-IN-KENYA-ISSUED-ON-15TH-JUNE-2017.pdf149 https://www.sde.co.ke/article/2001259002/kenya-film-classification-board-bans-comedy-show-promoting-gay-content150 Intermediary Liability in Kenya (Munyua, Githaiga and Kapiyo) Available at https://www.apc.org/sites/default/files/Intermediary_Liability_in_Kenya.pdf151 Freedom of the Net, Kenya 2017 (FreedomHouse) Available at https://freedomhouse.org/report/freedom-net/2017/kenya152 https://www.ifree.co.ke/2017/08/robert-alai-held-incitement-violence/153 https://transparencyreport.google.com/government-removals/by-country/KE?hl=en&country_request_amount=group_by:totals;period:1498780800000;authority:KE&lu=country_item_amount&country_item_amount=group_by:totals;period:1498780800000;authority:KE154 https://transparency.twitter.com/en/countries/ke.html155 https://transparency.oath.com/government-removal-requests.html “Statement on Children TelevisionProgrammes Promoting Homosexualityin Kenya”148, KFCB stated that access tocertain content aired by MultiChoice, a SouthAfrican pay TV network, was prohibited onthe grounds that “homosexuality goes againstour Kenya’s moral values and culture”.Again, in November, the KFCB CEO bannedyet another popular show after it introduceda gay storyline149. Takedowns may also be brought aboutunder section 62 of the National Cohesionand Integration Act, which holds liable anymedia enterprise for publishing any utterance,which amounts to hate speech. This provisioncould be invoked to remove or block contentincluding online content150.In addition, some reports indicate that theauthorities may force users to remove certaincontent from their Social Media profiles. Inone example, blogger Robert Alai removedcontent from his Facebook page in August2017151. This was after he was arbitrarilyarrested152 for the post.The Kenya government did not requestGoogle to remove any content during theperiod of July - December 2016, and January– June 2017, according to its TransparencyReports153. Similarly, no requests were madeto Twitter154 or Yahoo155 during the reportingperiod. Cyberbullying While the Internet is a powerful toolfor connecting like-minded people and communities, it can also be used negatively,with devastating effects. Cyberbullyingis one of the negative impacts which stemfrom the unfettered liberty to communicate- ranging from defamation, harassment andabuse to threats of physical harm. The term‘cyberbullying’ is often treated as a distinctphenomenon, but it is an extension of bullying,which is an age-old problem. Bullying tapsinto societal undertones of prejudice anddiscrimination and often impacts people withprotected characteristics of race, religion,sexuality, gender identity and disability themost156.In Kenya, the phenomenon is on the rise157.Cyber bullying occurs through informationexchange without physical contact between aperson and the victim. However, this does noteliminate physical harm altogether158. In May2017, cyberbullying of a 29-year-old womanon Facebook was linked her eventual suicide.It was alleged that members of the Facebookgroup, Buyer Beware, aggravated the suicideof 29-year-old Brenda Akinyi Maone Waru.It was reported that she was taunted for ‘lackof morals’ for yielding to a police officer’sdemand for sex when seeking assistance ona case relating to the defilement of her three-year-old daughter. The ridicule is said to havetriggered the taking of her own life.159.In a bid to address cybercrime includingcyber-bullying, Kenya enacted the Computerand Cybercrimes Bill in 2017. Section 14 (1)reads:A person who, individually or withother persons, wilfully and repeatedlycommunicates, either directly orindirectly, with another person oranyone known to that person, commitsan offence, if they know or ought toknow that their conduct is likely tocause those persons apprehension or 156 The United Nations Chronicle Available at https://unchronicle.un.org/article/cyberbullying-and-its-implications-human-rights157 https://www.kenyans.co.ke/news/19287-6-kenyan-media-personalities-who-were-victims-cyber-bullying158 https://www.the-star.co.ke/news/2017/05/30/kenyan-activist-takes-on-cyber-bullying-as-threat-grows_c1566520159 https://www.ifree.co.ke/2017/05/facebook-group-buyer-beware-distances-itself-from-cyber-bullying-that-contributed-to-womans-suicide/160 https://www.standardmedia.co.ke/article/2001238930/kamukunji-teenager-kills-himself-after-online-game161 https://www.kenyans.co.ke/news/how-usiu-student-was-kidnapped-fraudsters-facebook fear of violence to them or damageor loss on that persons’ property; ordetrimentally affects that person.Section 14, curiously, conflates andcombines the crimes of cyberstalking andcyberbullying, leaving the scope unclear. Thisoffends legal principles which state that somenon-negotiable features of criminal offencesare specificity and foreseeability. On thisbasis, one can argue that section 14 fails thistest. Other cybercrimes: Unfortunately, that of Brenda Waru wasnot the only reported suicide as an offlineconsequence of online activity in 2017.Again, in May of 2017, online incitement tocommit suicide led to the death of a 16-year-old boy in Kamukunji, Nairobi, after playingan online game that encourages one to takehis or her life. Jamie Njenga, a Form Twostudent at JG Kiereini Secondary School inKiambu County had played the online gameBlue Whale Challenge. It entailed carrying out50 challenges, and the player is consideredthe winner when he or she goes through thelast challenge, which requires the person tocommit suicide.160.In December 2016, a United StatesInternational University - Africa (USIU-Africa) student was kidnapped after fallingvictim to fraudsters who described themselvesas businessmen on Facebook. According toreports, the student identified as ChristineChepkurui Rono was duped into believingthat the presumed businessmen wouldhelp boost her start-up business and waskidnapped thereafter. The police traced thesuspected criminals who had demanded Ksh.10 million for her release.

Right to Privacy and Access toInformation Online The right to privacy online includes freedomfrom surveillance, the right to use encryption,and the right to online anonymity. Everyonealso has the right to data protection, includingcontrol over personal data collection,retention, processing, disposal and disclosure.Additionally, freedom from surveillancegrants every person the right to communicatewithout arbitrary surveillance or interception(including behavioural tracking, profiling, andcyber-stalking), or the threat of surveillanceor interception. Third, everyone has the rightto seek, receive and impart information andideas through the Internet162.These principles feature broadly in theKenyan Constitution at Article 31, whichreads as follows: Every person has the rightto privacy, which includes the right not tohave their person, home or property searched;their possessions seized; information relatingto their family or private affairs unnecessarilyrequired or revealed; or the privacy of theircommunications infringed. Article 35 provides for the right of access to information. It states: Every citizen has theright of access to— information held by theState; and information held by another personand required for the exercise or protectionof any right or fundamental freedom. Everyperson has the right to the correction ordeletion of untrue or misleading informationthat affects the person. The State shall publishand publicise any important informationaffecting the nation.Having outlined the legal and humanrights foundations, below is an analysis of theexercise of the rights of access to informationand privacy, and government reaction to theenforcement in 2017. 162 IRPC Charter of Human Rights and Principles for the Internet Available at http://internetrightsandprinciples.org/site/charter/163 http://kenyalaw.org/caselaw/cases/view/140420/164 Sitting as Maraga, CJ & P, Mwilu, DCJ & V-P, Ibrahim, Ojwang, Wanjala, Njoki and Lenaola, SCJJ (http://kenyalaw.org/caselaw/cases/view/140420/)165 http://kenyalaw.org/caselaw/cases/view/140420/166 http://kenyalaw.org/caselaw/cases/view/142374/167 http://kenyalaw.org/caselaw/cases/view/142924/ Access to information requests: Election Petitions: In Raila Amolo Odinga & another vIndependent Electoral and BoundariesCommission & 2 others163, the SupremeCourt of Kenya (SCOK)164 clarified that thepetitioner had “set out the parameters of theintended scrutiny in the petition namely, allrejected votes and spoilt votes, the returnsof the Presidential Election including but notlimited to Forms 34A, 34B and 34C, and theKIEMS Kit, the server(s) and website/portal”.The SCOK ordered read only access to ahost of systems and documents. The Courtalso ordered that the Registrar (assisted by anumber of judicial officers and staff) superviseaccess to the certified copies of original Forms34A and Forms 34B by the petitioners and3rd Respondents165. Similarly, in Martha Wangari Karua& another v Independent Electoral &Boundaries Commission & 3 others166,Justice Gitari ordered the 1st respondentto allow read only access of the data in theKIEMS kits with regard to the GubernatorialElections of Kirinyaga County. The judgefurther ordered the 1st respondent to supplythe Petitioner certified photocopies of Forms37A, and 37B as prayed in prayer No. 4and the petitioner access to original Forms37A and 37B. This was also the case inFarah Maalim v Independent Electoral &Boundaries Commission & 3 others where theCourt granted the petitioner read only accessto the data extracted from the KIEMS kits inrespect to the polling stations requested167. Other requests: Katiba Institute (KI) regularly makes use ofArticle 35 on Freedom of Information (FOI)to give effect to the constitutional principlesof transparency, accountability and freedom of expression. Some Notable FOI Requests168made by KI concerned i) the Judicial ServiceCommission recruitment of Chief Justice,Deputy CJ and Judge of the Supreme Court169;ii) the OKOA Kenya Referendum170; iii)EACC Report on Mileage Claims by MPs171;and appointment of Members of Boards ofState Corporations and Agencies172.In Katiba Institute v Presidents DeliveryUnit & 3 Others173, the High Court consideredthe constitutional petition regardingpublished advertisements in the media,through billboards and in business messagingor tags #GoKDelivers and #JubileeDelivers.Katiba Institute (KI), the petitioner, wroteto the Presidents Delivery Unit (PDU), the1st respondent on 17th August 2017 inpursuit of its right of to access information.KI was seeking information on how manyadvertisements had been published, throughwhat media, schedules and dates when it wasdone, copies of the documents advertised, totalcost incurred and the relevant governmentaccounting office(r) and the individual orgovernment agency that met the cost. Theinformation sought was to cover the period25th May to 16th August 2017.KI relied on section 14 (2) of the ElectionsOffences Act which prohibits governmentfrom advertising in print or electronicmedia or by way of banners or hoardingsin public places its achievements duringelection period. The petitioner avered that therespondents refused and or failed to supplythe information sought under Article 35(1) 168 http://www.katibainstitute.org/what-we-do/freedom-of-information/169 KI wrote to the Judicial Service Commission on July 14 2016 seeking information on the criteria that was used to shortlist applicants who applied forthe positions of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court. These positions fell vacant following the retirement of the formerChief Justice Dr. Willy Mutunga, Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi170 KI made an FOI request in February 2016 to the Independent Electoral and Boundaries Commission asking to be furnished with information on whatwere the issues raised in the General Suggestion by promoters of the OKOA Constitutional Amendment Initiative when it asked people to sign on insupport of the popular initiative. KI is concerned that promoters of OKOA initiative may have developed a Constitutional Amendment Bill that includesproposals for constitutional amendments that go beyond what the promoters of the initiative proposed in the General Suggestion.171 KI is working with the National Civil Society Congress to compel the Ethics and Anti-Corruption Commission (EACC) to disclose a Report whichresulted from an investigation of the Mileage Claims made by Members of Parliament.172 KI and Article 19 filed an FOI request with the Public Service Commission (PSC) asking to be provided with information whether the principles andvalues of Public Service under Article 232 of the Constitution which requires, among others, that public offices be filled through a competitive processwas followed when the national executive, including the President, appointed persons to sit on Boards of various State Corporations and Agencies inApril and October 2015.173 http://kenyalaw.org/caselaw/cases/view/144012/174 UN Report on The Right to Privacy in the Digital Age (A/HRC/27/37) Available at http://www.ohchr.org/EN/Issues/DigitalAge/Pages/DigitalAgeIndex.aspx and in doing so failed to observe Article 10of the Constitution.Justice Chacha Mwita stated that it washis “evaluation and analysis of the facts andevidence …. and the law [that he came] to theinescapable conclusion that the respondentsviolated the petitioner’s right of access toinformation and that no effort was made tojustify this violation”. He consequently issueda declaration that the failure to disclose andpublicize the requested information infringedthe right of access to information, Article10 constitutional values and Chapter Sixobligations on leadership and integrity. MwitaJ. issued an order of mandamus compellingthe 1st and 2ndrespondents to provide, at therespondents cost, information sought by thepetitioner in their August letter. Government requests for user information: There may be legitimate reasons for aState to require that an information andcommunications technology companycommunications and technology companyto provide user data; however, a companyshould only supply data or user informationto a State in response to a request where it isin keeping with standards regarding the rightto privacy under international law, or it risksbeing complicit in or otherwise involved withhuman rights abuses174.There is a positive trend of privatecompanies promoting transparency andaccountability, through periodicallypublishing reports detailing informationon government requests for user data,content removals, and compliance withthose requests, including internet companies(Google, Twitter, Facebook and Yahoo) andtelecommunications companies (Vodafone,Orange and Millicom)175.The Kenya government made one requestfor user/account data, ostensibly relating toa criminal process during the period of July –December 2016176. Facebook did not comply.For the period of January – June 2017,according to its Transparency Reports, thegovernment made 7 requests to Facebook topreserve account records in connection withofficial criminal investigations for 90 dayspending our receipt of formal legal process177.It did not make any data requests, however. Communication surveillance andinterception and the collection of personaldata: State agencies in most countries have alwayshad the capacity to collect and monitorcommunications – from telegraph informationto telephone calls, and Kenya is no exception.In the digital age, this has expanded. TheKenya government has a long history ofsurveillance of journalists, political rivals,and civil society organizations and actors. Butwith the proliferation of smartphones and therise of in-app (closed) communications hasforced a new scramble by intelligence agenciesto catch up and by-pass the encryption usedin some of the apps178. This has led countriesto adapt and utilize high-tech methods ofshadowing and spying on telecommunicationsystems and interception of data and content.Surveillance has been propelled byadvancements in technology, vagueness oflaws and the role of intermediaries. Leaps 175 CIPESA Policy Brief: The Growing Trend of African Governments’ Requests for User Information and Content Removal From Internet and TelecomCompanies (July 2017) Available at https://cipesa.org/?wpfb_dl=248176 https://transparency.facebook.com/country/Kenya/2016-H2/177 https://transparency.facebook.com/country/Kenya/2017-H1/178 https://www.standardmedia.co.ke/business/article/2001229876/is-someone-listening-in-on-your-calls-here-s-why-you-should-be-worried179 The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act isauthorized, sanctioned, or not forbidden by law. A legal act is performed in accordance with the forms and usages of law, or in a technical manner.(http://legal-dictionary.thefreedictionary.com/lawful)180 Track, Capture, Kill: Inside Communications Surveillance and Counterterrorism in Kenya (Privacy International, 2017) Available at https://privacyinternational.org/node/43181 Freedom of the Net Report 2017 (Freedom House) Available at https://freedomhouse.org/report/freedom-net/2017/kenya in technology coupled with rising insecurity,periodic clashes/poll violence and terrorismhas meant that an entire billion-dollarindustry has sprung up to cater to the needs ofgovernments to monitor activity of netizensand ICT users with the aid of sophisticatedtechnology.The practice of surveillance, in and of itself,is not the focus of the present review. Instead,the analysis examines whether the practice ofmonitoring and intercepting communicationis both lawful and legal179. In fact, numerouslaws in Kenya provide for surveillance andinterception of communications, namely theKenya Information and Communications Act,the Prevention of Terrorism Act, the NationalPolice Service Act, the National IntelligenceService Act, the Official Secrets Act, amongothers. The principle of presumption of legalityapplies, even though the state’s track record vizobservation of legal and international humanrights standards is abysmal. For example, it isan open secret that the National IntelligenceService, which apparently has direct accessto communication networks across Kenya,regularly shares information with policeagencies, some of whom have been engaged ingross human rights abuses180. Such actions areconsidered extra-legal and go unchecked. Thegovernment’s unlawful and disproportionatesurveillance capabilities became increasinglyevident in the past year, particularly as thecountry prepared for national elections inAugust 2017181.Kenya’s Communications Authority citedthe risk of a repeat of the post-election violenceof the 2007 election period to justify a Ksh.2 billion investment in monitoring Kenyans’communications and communications devices.

The Authority in January 2017announced that three projects – one each tomonitor radio frequencies, monitor SocialMedia platforms, and ‘manage devices’would address this182.The Communications Authority’s bestlaid plans, as it were, for executing theDevice Management System were thwartedby Justice Mativo. The Milimani HighCourt judge barred CA from installing thecontroversial communication monitoringsystem. In the case filed by Okiya Omtata,the activist argued that CA’s arbitrarydecision to spy on Kenyans violates boththe law and the Constitution. According tothe court documents, the Government ofKenya sought permission to listen to calls,read text messages and review mobile moneytransactions involving the public, in violationof the right to privacy183.On the social media monitoring front,unconfirmed reports from sources withinthe Communications Authority disclosedthat in late 2016, the Authority finalized acontract with Israeli ‘web intelligence’ firmwebintPro184. The firm’s HIWIRE technologyallows for the capture and analysis of open-source traffic and is particularly adapted toanalyzing Social Media. Some of the featuresof the system include the ability to maplinks between Social Media users, ‘real time’surveillance of target objects, presumablyindividual users185.Privacy International reported that there isa link between interception of communicationscontent and data and the perpetration ofgross human rights abuses. Authorities spyon, profile, locate, track – and ultimately 182 Track, Capture, Kill: Inside Communications Surveillance and Counterterrorism in Kenya (Privacy International, 2017) Available at https://privacyinternational.org/node/43183 http://www.kbcenglish.co.ke/index.php/milimani-high-court-barres-installation-of-communication-monitoring-device-management-system/184 Track, Capture, Kill: Inside Communications Surveillance and Counterterrorism in Kenya (Privacy International, 2017) Available at https://privacyinternational.org/node/43185 webintPro Web Intelligence Systems, 2017, Available at: http://www.webintpro.com186 Track, Capture, Kill: Inside Communications Surveillance and Counterterrorism in Kenya (Privacy International, 2017) Available at https://privacyinternational.org/node/43187 Kenya’s scorecard on security and justice : Broken promises and unfinished business 2017 (KHRC) Available at http://www.khrc.or.ke/publications/166-kenya-s-scorecard-on-security-and-justice-broken-promises-and-unfinished-business/file.html188 http://knchr.org/Portals/0/PressStatements/PRESS%20STATEMENT%20-%20STILL%20A%20MIRAGE%20-%20REPORT.pdf?ver=2017-12-20-104740-223189 Kenya’s scorecard on security and justice : Broken promises and unfinished business 2017 (KHRC) Available at http://www.khrc.or.ke/publications/166-kenya-s-scorecard-on-security-and-justice-broken-promises-and-unfinished-business/file.html arrest, torture, kill or disappear suspects,as per its report186. This has contributed tothe normalization of extrajudicial killingsover the last few years. The Kenya HumanRights Commission (KHRC) documentedthat 141 persons were killed by the policein 2015 while 204 were killed in 2016 anda further 80 persons as at 28 June 2017187.The Kenya National Commission on HumanRights (KNCHR) documented 35 deathsresulting from post poll violence covering theperiod 1st September to October 2017 mostat the hands of security agents. This was inaddition to their previous records which putthe death toll at 57, meaning therefore thatby December, a total of 92 Kenyans had losttheir lives in elections related violence188. A deeply disturbing online phenomenonhas emerged as a result of the trend ofsurveillance and the normalization ofextrajudicial killings, as described below. Digitization of Extrajudicial Killings andExecutions: In 2017, extrajudicial executions took on anew (digital) dimension, as reported by theKenya Human Rights Commission189. In April2017, there emerged a number of Facebookaccounts and pages that believed to be run bypolice officers. Most of these Facebook pagesconcern low-income areas in Nairobi. Saidpages were characterized by posts warningspecific suspected criminal gang members inthe areas, complete with their photos, namesand areas of operation to change their waysand surrender to the police, failure to whichthey will be killed. Hours or days later, the“killer police” would post bloody pictures of the suspects gunned to death, sometimes withanother eerie warning to fellow suspectedgang members. These public announcementsof people that they intend to kill indicatethat some of the executions are planned andpremeditated.The digitization of these executions isnot only on Facebook. On 31 March and 1April 2017, video footage of an alleged plainclothes police officer showed him openlyshooting, at close range, and killing twounarmed suspected criminals in Eastleigh,Nairobi on suspicion of being members ofthe Super Power Gang, an outlawed criminalgang190. Surveillance of journalists: Human Rights Watch and ARTICLE 19research191 found that the Kenya governmenthas attempted to obstruct critical journalistswith legal, administrative, and informalmeasures, including threats, intimidation,harassment, online and phone surveillance,and in some cases, physical assaults. Policehave been implicated in online surveillanceand, at times, in directly threatening andphysically attacking journalists. In some cases,police have arbitrarily arrested, intimidated,or harassed journalists, according to thereport. Circulation of sexually explicit photoswithout consent: Photographs of strip-searched high schoolstudent taken by police: The High Court in December 2017 awardedKsh. 4 million to a school girl who was strip-searched by police in August 2015, for beingin possession of bhang. Justice John Mativoin his judgment ruled that the teenager’s rightsand dignity were violated. The eighteen-year- 190 Kenya’s scorecard on security and justice : Broken promises and unfinished business 2017 (KHRC) Available at http://www.khrc.or.ke/publications/166-kenya-s-scorecard-on-security-and-justice-broken-promises-and-unfinished-business/file.html191 “Not Worth the Risk”: Threats to Free Expression Ahead of Kenya’s 2017 Elections (Article 19, Human Rights Watch, 2017) Available at https://www.hrw.org/report/2017/05/30/not-worth-risk/threats-free-expression-ahead-kenyas-2017-elections192 https://www.standardmedia.co.ke/article/2001263488/court-awards-sh4-million-to-teenager-who-was-strip-searched-by-police193 https://www.cps.gov.uk/news/latest_news/crown_prosecution_service_offers_clear_guidance_for_prosecutors_on_revenge_pornography/194 http://blog.cipit.org/2016/12/19/high-court-intervenes-in-revenge-porn-case-of-miss-world-kenya-against-pageant-organisers-and-ex-boyfriend/195 http://nairobinews.nation.co.ke/news/kot-baby-mamas-nudes/196 Roshanara Ebrahim v Ashleys Kenya Limited & 3 others [2016] eKLR Available at http://kenyalaw.org/caselaw/cases/view/129450/ old girl from Kanyama Secondary School inKaratina was allegedly stripped naked andphotographed for hiding bhang in her undergarments. She had sought compensation in alaw suit filed jointly by herself and CRADLEChildren’s Foundation, claiming that the semi-nude photos which were circulated on SocialMedia had caused her embarrassment192. Revenge porn: The Crown Prosecution Service in the UnitedKingdom defines193 “Revenge Porn” as “thesharing of private, sexual materials, eitherphotos or videos, of another person withouttheir consent and with the purpose of causingembarrassment or distress. The imagesare sometimes accompanied by personalinformation about the subject, including theirfull name, address and links to their socialmedia profiles”194. This was the case where aTwitter user by the name @Kimindiri soughtto disgrace a former partner by sharing nudeimages of her, including her name, face andtelephone number195. His account has sincebeen permanently suspended.The Roshanara Ebrahim case196is alsoinstructive here. The High Court considereda petition filed by Ebrahim who was crownedMiss World Kenya 2015 and thereafterdethroned in reaction to the leaking to theMiss World Kenya organisers of allegednude photographs of her by the petitioner’sboyfriend. We will confine ourselves to thematter of revenge porn and the right to privacystrictly, and not the other legal matters.In the case, Muriithi J. stated that Article31 (c) of the Constitution provides for theright to informational privacy which includesprivacy of private photographs of a person.He opined that the in taking of ‘selfie’ nudepictures using a mobile phone or other communication gadget, a person does notthereby waive their right to privacy, Thejudge added that It was clear that she did not publish them or given consent for theirpublication. He held that the 3rd Respondent hadby his close relationship as a boy-friendof the petitioner accessed the petitioner’sphotographs, and may indeed have taken someof them, but he had no authority to publishthe private photographs. In forwardingthe private photographs of the petitionerto the 2nd respondent, the 3rd petitionerhad violated the petitioner’s right to privacy 197 http://kigf.or.ke/cyber-bullying-highlights-of-kigf-2017-online-discussions/198 http://icta.go.ke/pdf/National-ICT-Policy-20June2016.pdf199 http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2017/ComputerandCybercrimesBill_2017.pdf200 http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2016/InformationCommunicationTechnologyPractitioners_Bill_2016.pdf201 KICTANet Blockchain Policy Brief 2017 Available at https://www.kictanet.or.ke/?smd_process_download=1&download_id=28935.202 https://www.centralbank.go.ke/images/docs/media/Public_Notice_on_virtual_currencies_such_as_Bitcoin.pdf203 https://cointelegraph.com/news/kenyan-police-arrest-bitcoin-traders-due-to-alleged-banking-fraud of information under Article 31 (c) of theConstitution, and that the petitioner isentitled to compensation in damages.In regard to capacity there is need to investheavily in cybercrime units in the police forceand generally have operations digitized sothat police forces are equipped to deal withthe new frontier for crime. One of the mainchallenges in tackling the offense are findingthe main perpetrators, in instances of masscyber bullying where stories go viral in variouschannels, it may be impossible to even knowthe person who originally posted197. POLICY AREAS IN FOCUS FOR 2018: Review and repeal of antiquatedlegal provisions: The offence of ‘defamation of foreign princes’is one such example which should be repealedfor contravening the Constitution’s provisionson the exceptions to free speech. Section 67of the Penal Code creates the misdemeanouroffence, the particulars being: “any personwho, without such justification or excuseas would be sufficient in the case of thedefamation of a private person, publishesanything intended to be read, or any sign orvisible representation, tending to degrade,revile or expose to hatred or contempt anyforeign prince, potentate, ambassador orother foreign dignitary with intent to disturbpeace and friendship between Kenya and thecountry to which such prince, potentate,ambassador or dignitary belongs is guilty ofa misdemeanour”. Enactment of laws and policies: In 2018, priority should be given to the reviewof the Draft National ICT Policy198; theenactment of the Computer and CybercrimesBill199and public consultation on theInformation Communication TechnologyPractitioners Bill 200. Blockchain and cryptocurrency: An enabling environment should be fosteredfor the adoption of Blockchain technology.This calls for formulation of broad basedpolicy principles applied among trustedpeers and to avoid using regulation forspecific technologies. In addition, awarenessraising, and demystification of the technologyshould be a priority for the coming year201.Similarly, with cryptocurrency. The CentralBank previously warned202 Kenyans againsttransacting in the digital currency. In addition,there have been arrests of Bitcoin tradersreported203.

State of the Internet in Kenya 2017 30 Biometric technology and digital identity:Adoption of biometric identification is beingadopted by a number of sectors includingbanking, refugee registration, elections, andtransport and immigration (ePassport). Asadoption spreads, it would be useful to directour attention to its regulation, includingprivacy considerations. Data protection and retention: The enactment of the Data Protection Billmust be fast tracked. In addition, Kenyansmust prepare and ensure they are incompliance with General Data ProtectionRegulation (Regulation (EU) 2016/679)which will take effect in May 2018 and willoperate extraterritorially.In addition, the #UhuruDabChallengedebacle and the subsequent deletion of thepost showcased the need for a data retentionpolicy for government Social Media and otherdigital records. It demonstrated the need forclarity regarding official communication fromgovernment offices via digital platforms, asto the approach taken when deleting andarchiving public data, balancing againstthe public interest of preserving officialcommunication – whether correct, in error,popular or otherwise204. 204 https://www.nation.co.ke/oped/blogs/dot9/walubengo/2274560-3814268-75ohj7/index.html205 https://privacyinternational.org/sites/default/files/2017-12/Fintech%20report.pdf Privacy and fintech: The quarterly Fintech Report by PrivacyInternational launched in November 2017demonstrated the ways in which the financialsector disrupts human rights, privacy andidentity laws. In the majority of cases, fintechapplications require access to sensitive dataand information, at times even one’s SocialMedia accounts, in order to determine one’scredit score. In 2018, there needs to be adeliberate attempt to create a framework forethical use of personal data205.

@ This report was produced as part of BAKE’s iFreedoms Kenya program.State of the Internet in Kenya 2018