Can the state gag online critics? What does the law say?

As from the onset of anti-government protests in June 2024, social media has become a boisterous wind that has overpowered the State's flaps as many have used it to coin slogans and lobby campaigns against President William Ruto's leadership.

While Ruto was pushing for an increment of unbearable taxes, Kenyans online branded him 'Zakayo' (Zacchaeus the tax collector) and later introduced the 'Ruto must go" slogan while calling for his ouster.

The online ridicule was accentuated when every statement President Ruto made was countered by mockery which escalated to a widespread sharing of AI-generated images showing him in a coffin among other humiliating scenarios.

This was met with harsh rebuttals from Ruto's allies, calling for apt action against those responsible for the online mockery, leading to mysterious abductions of 5 youths who were released after public uproar.

Majority leader Kimani Ichung'wah urged Kenyan police to apprehend those breaching the law provisions, Interior Cabinet Secretary Kipchumba Murkomen and his Mining Counterpart Hassan Joho threatened action against online trollers.

President Ruto also joined the bandwagon condemning political leaders and parents for tolerating online abuses against government officials as well as allegedly inciting the youth.

Ruto called for sobriety in society, warning that the culture risks creating a future nation of bad moral standing and criminals who may even start killing people.

“Those using the internet to abuse others, and do bad things, I’m telling the parents and all of us to let us help the youth so that they are not used to doing useless things, or abuse. Others are putting others in coffins,” he said at a past public rally.

“Today you are putting politicians, tomorrow it will be church leaders, then your parents and your brothers, then you will become criminals and start killing people in Kenya.”

Call for regulation

Political leaders are now hinting at implementing the law to regulate social media as they aim to nip the heaping censures in the bud.

The new ICT CS William Kabogo vowed to hold talks with the Communication Authority of Kenya (CA) and stakeholders to instill regulations that will restrict the misuse of online platforms.

CS Kabogo insisted that Kenyans should endeavour to strike a balance between freedom of expression and ethical use of the internet. 

"It is important to be responsible. It is also important to enjoy the freedom enshrined in the Constitution but you know that freedom is limited to the extent it interferes with the freedom of others," he noted.

"We should be able to talk to  our children and each other and understand that this field is good and information is power but let us do things responsibly."

Prime CS Musalia Mudavadi has also espoused the same sentiments after admitting that the government has received lots of "beating" from the media and there needs to be a regulation to prevent the vice.

"We are facing some challenges around communication. In plain terms we are getting alot of beating from the media. Sometimes we don't speak about our good thing. It is important we package what we achieve appropriately and let the Kenyan people know that we are doing certain things," he noted.

Similarly, on January 16 the Interior Ministry ordered all social media platforms to establish physical offices in the country to tame the online abuse, adding that strict compliance will be required.

"The increasing misuse of social media, including harassment, hate speech and incitement to violence, necessitates immediate and decisive measures," said the ministry in a statement posted on X," said the Ministry.

"To ensure responsibility and accountability in the face of rising disinformation, social media manipulation, and online abuse, all social media organisations operating in the country must establish a physical presence within our jurisdiction."

The legal standing

The Computer Misuse and Cybercrimes Act of 2018 acknowledged that Cyber Harassment is a crime that is punishable by law.

Section 27 dictates that any person who willfully shares information that is likely to cause harm or loss of property to another individual is charged with committing an offense.

The person will also be charged if the information "detrimentally affects that person; or is in whole or part, of an indecent or grossly offensive nature and affects the person".

Those committing such an offense are liable to a fine not exceeding Ksh.20 million or imprisonment for a term not exceeding ten years or both.

Section 41 adds "A person who knowingly and willfully aids or abets the commission of any offence under this Act commits an offence and is liable, on conviction, to a fine not exceeding seven million shillings or to imprisonment for a term not exceeding four years, or to both."

The law also allows the police officer or any authorised persons investigating any breach of the Act to apply to the court for an order to collect any relevant traffic data, in real-time.

They can also compel a service provider, within its existing technical capability to collect or record traffic data associated with specified communications in real time.

"In making an application, the police officer or an authorised person shall state the grounds they believe the traffic data sought is available with the person in control of the computer system, identify and explain, the type of traffic data suspected to be found on such computer system," reads section 52(2).

It further reads: "(The officer shall) Identify and explain the subject of an investigation suspected as may be found on such computer system, the offences identified in respect of which the warrant is sought and explain the measures to be taken to prepare and ensure that the traffic data shall be sought while maintaining the privacy of other users and without the disclosure of data to any party not part of the investigation."

The Act also allows the State to seek legal assistance in any criminal matters from international players for purposes of collecting evidence.