The Internet, the law and the Kenyan 'Mwananchi'


 By Alex Tamei

With the pervasiveness of the internet globally over the past few decades, many have found their livelihoods online. The COVID 19 pandemic saw large swathes of young people reconsider four-year degrees and other relatively conventional life paths.[i]Even for those working conventional jobs, the COVID 19 pandemic saw most operations shift from physical to remote work with systems retaining a somewhat hybrid nature post-pandemic. [ii] Despite the present circumstances however, few Kenyans understand the laws and regulations governing the internet that they cannot live without.

Looking back less than two decades ago, the internet was a luxury in Kenya. Today it has become embedded in the day-to-day interactions of Kenyans at all levels. As at the writing of this Article, the recently concluded 2022 general elections exhibited just how entwined the internet and network technology have become with all other aspects of Kenyan society. The Independent Electoral and Boundaries Commission in its decision to make available the electoral forms on the internet allowed Kenyans in the farthest reaches of the country to feel included in the tallying process with little more than an internet enabled device and a calculator as requirements. All other considerations aside, just the effect that the public forms portal had on transparency and the feeling of public participation is tremendous.[iii]

The Laws regulating the internet primarily refer to The Constitution of Kenya 2010, which provides for freedom of expression in Article 33,[iv] and the right to access information in Article 35.[v] Article 32 grants all persons, the right to freedom of conscience, religion, thought, belief and opinion.[vi] The International Covenant on Civil and Political Rights (ICCPR) in Article 19 recognises the right in the context of the internet.[vii] These rights all come together in allowing for relatively unrestrained and widespread utilisation of the internet.

The statutory regime regulating the use of the internet in Kenya comprises of the following statutes; the Kenya Information and Communications Act,[viii]and the Data Protection Act.[ix] These laws govern issues such as data protection, cybercrime, and the regulation of internet service providers. Additionally, there is also the Kenya Computer misuse and Cybercrimes Act, which was enacted in 2018 to deal with issues, related to cybercrime and computer related crimes.[x]

Over the years, the government of Kenya has been especially keen to stamp out any instances of misuse of the internet which might cause harm to Kenyan citizens or the general populace. In the wake of the 2007 - 2008 post-election violence for example, the government maintained an increasingly stringent censorship of internet use on the grounds of stamping out hate speech. The definition of hate speech in the National Cohesion and Integration Act came to be seen as something of a claw back clause to the freedom of expression as established in Article 33 of the Constitution.[xi]

The government onslaught on hate speech saw several internet personalities, primarily bloggers, apprehended and detained. The Kenya Information and Communications Act allows for some instances where individual acts of expression can be criminalised.[xii] It creates an offense in its section 29 stating that '...any person who by means of a licensed telecommunication system sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person commits an offense....' This provision saw application in several instances such as when, in 2013, the blogger Robert Alai was detained and charged with misuse of telecommunication after posting an allegation on his twitter handle that government spokesperson Alfred Mutua had ordered the execution of two human rights activists and was gunning for him next.[xiii]

This instance, in showing how the government applied the statutory regulations on the internet cements the necessity for understanding these regulations and the possible illegal uses of the internet even more. Other possible statutory offences in relation to the internet include hacking, which according to the Computer Misuse and Cyber Crimes Act could incur a fine not exceeding Ksh 5,000,000 shillings.[xiv] Unauthorized access, interference or interception of protected computer systems could incur a fine not exceeding Ksh 25,000,000 or a twenty-year prison sentence or both.[xv] Phishing, the fraudulent practice of sending emails purporting to be from reputable companies in order to induce individuals to reveal personal information, such as passwords and credit card number.[xvi] The Computer Misuse and Cybercrimes Act creates an offence of phishing with a resulting penalty of three hundred thousand shillings in fines or imprisonment for a maximum term of three years or both.[xvii]

In essence, the constantly evolving cyberspace realm in Kenya has equally robust laws that are also constantly evolving to meet the changing internet. The unavoidable increase in relations between the ordinary Kenyan wananchi and the internet also makes them coming into contact with the law on the internet and its enforcers inevitable. Ignorance on the law and the internet would likely result in very undesirable consequences.

[i]Anne Kim, 'Generation COVID: Record Numbers of Youth Opt Out of College, Work', 28 September 22.

[ii]International Labor Organization, 'The Next Normal: The Changing Workplace in Africa', 2022.

[iii]International Crisis Group, 'A Triumph for Kenya's Democracy', 08 September 2022.

[iv]Constitution of Kenya (2010), Article 33.

[v]Constitution of Kenya (2010), Article 35

[vi]Constitution of Kenya (2010), Article 32.

[vii] Internationally Covenant on Civil and Political Rights, Treaty Series, Vol 999, p. 171, Article 19.

[viii] The Kenya Information and Communications Act (No 2 of 1998)

[ix] The Data Protection Act (No 24 of 2019)

[x] Kenya Computer Misuse and Cybercrimes Act (No. 5 of 2018).

[xi] National Cohesion and Integration Act (No 12 of 2008), Section13.

[xii]Kenya Information and Communication Act (No 2 of 1998),Section 29.

[xiii]Gareth van Zyl, 'Kenyan tech blogger released on bail', ItWeb Africa, 22 Aug 2012. - <https://itweb.africa/content/mYZRXM9Pnoo7OgA8 >-accessed on 6 October 2022.

[xiv] Computer Misuse and Cybercrimes Act (No 5 of 2018), Section 14.

[xv] Computer Misuse and Cybercrimes Act (No 5 of 2018), Section 20.

[xvi] Oxford Languages, Definition of Phishing, < Oxford Languages | The Home of Language Data (oup.com)>accessed on 30 January 2023

[xvii] Computer Misuse and Cybercrimes Act (No 5 of 2018), Section 30. 

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