“The persistent controversy about the reach of the state’s power to restrict free thought and speech in a democracy suggests that freedom of expression has still not made an unassailable case for itself.” – Githu Muigai, Esq. (September 1993).
To speak or to otherwise express oneself is a natural, and indeed an essential human activity, part of what it means to be human. Expression is therefore a means of fulfillment of the human personality. On a larger scale, freedom of expression is essential to the functioning of a democratic state. For people to make political choices they must have access to information and to different view-points. In a democracy, the right to express grievances and to propagate or criticise policies enables people to contribute to peaceful progress and change their society.
Well, atleast in theory.
Enter the curious case of Robert Alai.
While it is forbidden to discuss a case that is pending before court, the circumstances surrounding this case bring into sharp focus the scope and limitations of “online freedom” in Kenya. Online freedom may be conceptualized as a web of mutually supporting rights and freedoms enshrined in the Constitution that can be extended to the online/digital environment. In addition to the freedoms of expression and media (Articles 33 and 34 respectively), I have in mind the freedom of conscience, religion, belief and opinion (Article 32), the right of access to information (Article 35), freedom of association (Article 36) and the right to human dignity (Article 28).
In this day and age, we have all become ‘the media’. When we update our social media platforms with text, pictures, sound, video, we are publishers, we are producers, we are broadcasters hence we are the media. In today’s digital era, we have all become part and parcel of the Fourth Estate. With each tweet, we comment on and scrutinise the daily activities of the government. With each blogpost, we evaluate how government performance matches campaign promises and state programmes meet the mwanainchi’s expectations. Social media platforms in a democratic society are the medium through which the force of public opinion regulates governance. Where the government only desires its views are disseminated, the premium on human rights, dignity and active participation in the development process is negated.
However, online freedom as conceptualized above is not limitless or infinite. All rights and fundamental freedoms under the Constitution can be limited but only to the extent that it is reasonable and justifiable to do so in an open and democratic society based on human dignity, equality and freedom. For a practical application of this limitation of rights analysis (encapsulated in Article 24), the recent judgment of the High Court in the case of Randu Nzai Ruwa & Two Others v.s Minister for Internal Security (aka the MRC case) is useful. In the pertinent bit of this judgment, the court noted:
“It is hardly surprising that many Kenyans, who overwhelmingly endorsed a unitary state, would be shocked and disturbed by the secession agenda of MRC. But democracy is not without price. There can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined is applicable, not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that shock or disturb. So in a free and democractic society, we are expected to put up with some defiance, dissent and controversy.
What would be of great concern to this court is that the agitation for secession must be expressed as a fair and acceptable democratic discourse. The agitation should not be propaganda for war, incitement to violence, hate speech or advocacy for hatred…” [Emphasis added]
Therefore within the context of online freedom, our right to freedom of expression is unlimited to the extent that it does not offend Article 33 of the Constitution. However abuse of online freedom by a person can easily be cancelled out by abuse of state machinery by the government to limit the rights of Kenyan citizens contrary to the Constitution.
History reminds us that one of the major preoccupations of political regimes in Kenya has been to control closely what sort of information should reach the Kenyan public. The natural consequence of this governmental action was the creation of an information-starved population which was only exposed to usual hum-drum of party politics. In those days, members of the press who even entertained the notion of Investigative journalism and exposure of excesses and corruption in the government, were subjected to ignominious treatment at the hands of the Executive. Harassment of newspaper editors, proprietors and journalists were a common occurrence. Reporters covering sensitive (or what was perceived as sensitive) incidents were manhandled and assaulted by police and had their notebooks and cameras confiscated.
In this context, PLO Lumumba in May 1992 writes:
“It cannot be gainsaid that “strong” authoritarian governments neither love nor respect the press. They scorn it as a necessary evil. It would therefore be unrealistic not to expect such governments not to interfere with newspapers and the Press in general. There is an inherent conflict between autocratic Governments and the media. In the circumstances, it need not occasion any surprise that book banning and press censorship is the stock-in-trade of autocracies.”
Therefore, in present day Kenya, the interpretation and implementation of the constitutional guarantees for online freedom must be concerned with striking a balance between the interests of the individual and those of the State in a manner that ensures free flow of information, ideas, opinions and contentions not only to guide governmental actions in the right path, but also to prevent frustration and revolt arising from suppression of public opinion and freedom of action with its familiar attendant perils.
In both the online and offline environments, freedom of expression is essential in the search for truth, it is essential to self-governance and to self-fulfilment of the human person.