Silhouettes, AI images, memes; Have online activists stretched beyond freedom of expression?

And while these are fundamental ingredients and a cornerstone of Kenya’s constitutional democracy, constitutional lawyers opine there are limitations bordering on personal reputational injury, dignity and integrity which may amount to cyber-bullying and harassment punishable under the computer misuse and cybercrimes act of 2018. 

Online platforms have become the theatre of operation for Kenya’s Youth. The Gen-Z winter months ago compelled President William Ruto to join an online conversation to hear from Kenya’s Youth through an X space. 

However, recent online activities targeting the country’s leadership have sparked debate on the limits of the freedom of expression.

“Freedom of Expression although recognized and protected by the Constitution is also qualified. The qualification means you do not say something that injures personal injury or reputational injury to others. You have to pay attention to people’s self-worth and not injure them by expressing yourself,” says lawyer Steve Ogolla. 

And while there are acceptable limits subject to Judicial interpretation, on the legal, moral, and decency limits, some activities may attract punishment under the Computer Misuse and Cybercrimes Act, 2018.

“So, I have seen these silhouettes depicting the President in a coffin and in a grave that cannot by any stretch of imagination be taken to fall within the framework of Freedom of Expression. That amounts to harassment, bullying, malice and ill-will. The kind of moral wrongs that could easily turn out to be legal wrongs,” Ogolla opines. 

Recently, the National Police Service (NPS) has been accused of involvement in abduction of those behind the content online. NPS has distanced itself as concerns mount over the whereabouts of the said youth. 

“Police officers are always at the forefront in the defense of freedoms and rights of the people. That is actually our training. To defend the rights of the people. Now, abduction does not come here because in doing so, you are not defending the rights of those people,” Police Inspector General Douglas Kanja told Citizen TV.

In Ogolla’s view, creative or artistic expression should not be punished “but it is upon us to apply good sense of judgement to know the limits.” 

“If we don’t ask ourselves the limits, then you run the risk that you may be inconvenienced if law enforcement agencies if they perceive your actions as outrageous and malicious,” adds Ogolla. 

The rise in targeted criticism of leaders on social media by Kenyans, has seen a corresponding rise in targeted intimidation creating an environment of fear and hostility. 

Lawyers and Human Rights Defenders say it is a systematic clampdown on free speech by the government. 

Human Rights Defender Alamin Kimathi drew comparisons between Presidents Moi and Ruto on the X platform saying: “Moi got so jumpy that he detained people for the most idiotic imagined ‘crimes of treason’. Two village loafers deep in Nyandarua were jailed for writing letters to each other while high on weed, signing off as the King and Prime Minister of Kenya respectively. We heading there?”

Senior Counsel Paul Muite, also posted on X, calling for the release of Kenyans abducted, reportedly by security agencies stating.

“GoK release those young Kenyans ABDUCTED for exercising their Constitutional Rights and Freedoms of thought and expression. They should enjoy Christmas and New Year with their families,” Muite wrote. 

The response from the government targeting tech-savvy Kenyans has led to calls for accountability on the whereabouts of Kenyans whose families allege have been abducted by security agencies.