Cohesion commission chairman Francis ole Kaparo. There are government
guidelines to prevent dissemination of undesirable social media content.
FILE PHOTO | NMG
The Kenyan government is waging a war against online hate
mongers with what would appear to be a zero-tolerance policy. In an
unprecedented move two chat group administrators have been arrested.
They
were charged with sharing hate messages on WhatsApp that threatened
national security and face an additional charge of spreading alarming
propaganda on social media.
Like many other countries,
Kenya has charged people with hate speech before. Recently in the UK, a
Facebook user was charged with spreading hate messages against Muslims.
Rwanda has also successfully charged various people with hate speech.
The
difference in this particular case is that WhatsApp administrators have
been charged. However, this is not the first time a chat group
administrator has been prosecuted for hate speech. In a similar case in
India, the government arrested WhatsApp administrators for offensive
posts about the prime minister.
As Kenya geared up for its general election in August it was already grappling with hate speech.
This
reached a crescendo in the post-election period as supporters of the
two opposing political groupings — the ruling Jubilee party and the
National Super Alliance (Nasa) — engaged in digital warfare.
Fearful of a rerun of previous post election violence, police were well prepared this time.
Under Kenyan law hate speech is a criminal offence that carries a five-year jail term and a million shilling fine.
One
of the suspects allegedly shared a hate message that threatened to
slaughter members of a certain community. The arrests have proved
controversial on two grounds.
The first is that the government has been criticised for violating the constitutional freedoms of expression and the media.
The second is that the WhatsApp users felt safe because of the anonymity provided by the platform.
Moreover, the Kenyan authorities have shown reluctance to prosecute hate speech cases.
Earlier
in the year, politicians accused of hate speech were released due to
lack of evidence and the absence of a supporting legal framework.
But I believe there are grounds for a successful prosecution under Kenyan law.
But I believe there are grounds for a successful prosecution under Kenyan law.
On the issue of freedom of expression, Kenya’s Constitution enshrines the right to freedom of speech.
But
this doesn’t include allowing propaganda for war, incitement to
violence, hate speech, advocacy of hatred, discrimination, ethnic
incitement, vilification of others, and incitement to cause harm.
This is in line with international law which protects freedom of expression, but has limitations.
During
the election period, thousands of Kenyans used social media to express
their opinions. Many of the conversations pitted members of different
ethnic communities against each other.
This type of
hostile communication was a spillover from the 2013 general election
period when online hate speech first reared its ugly head.
This year many Kenyans retreated to the privacy of their WhatsApp groups to speak freely about their political affiliations.
Again,
a good number of these conversations were inflammatory. It’s
understandable that Kenyan authorities felt they needed to act.
But
what happens next is unclear given that the law hasn’t caught up with
the implications of people using various social media platforms to
ventilate.
There have been a number of cases in which individuals have been charged with hate speech.
And
on their part, newspapers, radio stations and media enterprises can
also be held criminally liable for publicising threatening, abusive or
insulting material intended to stir up ethnic hatred.
The law applies to audio, visual and written hate messages, all of which are common on social media platforms.
Therefore,
it can be argued that Section 62 of the National Cohesion and
Integration Act includes online hate speech. This would make it a crime
for digital perpetrators — including those in WhatsApp groups — to
spread hate through private messages.
The government
has also published guidelines specifically aimed at preventing the
dissemination of undesirable political text messages and social media
content.
According to the guidelines, WhatsApp group
administrators are responsible for the content disseminated through
their groups and, therefore, they are criminally liable for any harm
that results.
I believe that these guidelines, when read together with Section 62, empower the police to arrest WhatsApp group administrators.
This
is because the guidelines create legal responsibilities and liabilities
in the social media environment that can be applied to content service
providers, including WhatsApp group administrators.
And
the activities governed by the guidelines include social media use and
networking, online publishing and discussion, media sharing, blogging,
micro blogging, and document and data sharing.
As such, even WhatsApp group members can be accused of spreading hate speech.
The
impact of these rules has been that online group administrators and
content creators such as bloggers must now actively monitor their
members so that they are well aware of the information that is being
shared on their platforms.
Therefore, one will have to
watch and see whether the charges will be successful or whether the
constitutional court will be faced with a question of interpretation.
The
salient point of contention will be whether the WhatsApp guidelines
violate the right to freedom of media and speech or if they are a
necessary limitation, taking into account Kenyan’s online environment
and the people’s propensity to post inflammatory or dangerous speech.
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