Drawing the Line: Online Freedom, Rights Abuses and the Constitutional Imperative

“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.

4 thoughts on “Drawing the Line: Online Freedom, Rights Abuses and the Constitutional Imperative

  1. Good post NV.

    I still don’t have the full facts of the Alai case so I will not comment on that and also bearing in mind the sub judice rule.

    However, we all agree that the freedom of expression is one of the most basic human right and as you rightly pointed out, it is essential for any democracy. Of note though, is that this right is not absolute and is subject to limitations from a reading of Article 25 of the Constitution. These limitations have been spelt out in Article 33.

    Article 33(3) states:
    “In the exercise of the right to freedom of expression every person shall respect the rights and reputation of others”

    This I think, is the most relevant limitation of the said right to social media. It answers the question most are asking “Where does your freedom end and where does my right begin?”

    It is informed by and in line with Article 27 on equality that states:
    (1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
    (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

    Article 24 further states: “A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-
    (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others;

    I’ll then refer you to the interim judgment by Rawal J in Kwacha Group Of Companies & Another –vs- Tom Mshindi & 2 Others [2011] Eklr from which I will borrow heavily.

    The court stated; “I will quote some of the constitutional provisions which emphasis the spirit, purport and objects of the Bill of Rights. Article 28:-
    “Every person has inherent dignity and the right to have that dignity respected and protected.” (emphasis mine)”

    In as much as we are exercising our freedoms on social media, freedom comes with responsibility and that cannot be overemphasized. Therefore, we cannot purport to exercise our freedom of speech by putting up offensive blogpost, tweets and facebook updates. We must always have the rest of the populace in mind to whom we owe respect and must at all times uphold their right to human dignity as espoused in Article 28 of the Constitution. To also quote the Bible, “To whom much is given, much is expected.”

    On the other issue as to whether any form of regulation by the government or its organs amounts to “gagging social media”, I believe this kind of talk is misinformed. The government has the discretion to regulate social media. This right however is not arbitrary and is guided by the Constitution and the relevant laws.

    I am guided by this quotation from Rawal’s judgment:-
    “The Supreme Court of India in the case of Bennet Coleman & Co. & Others (1972) RD – SC 266 has observed , namely –
    “It does not follow from this that freedom of expression is not subject to regulations which may not amount to abridgment. It is a total misconception to say that speech cannot be regulated or that every regulation of speech would be abridgement of the freedom of speech. No freedom however, absolute, can be free from regulation.” (Emphasis mine)

    It was further emphasized by the court and I quote:-
    “There might be an abridgement of speech, but not an abridgement of freedom of speech. The pith and substance test although not strictly appropriate might serve as a useful purpose in the process of deciding whether the provision in question which work some interference with the freedom of speech are essentially, regulatory in character.” (emphasis mine).”

    I however hope we can have a constitutional interpretation by the courts on the issue of social media and the Bill of Rights.

  2. While I understand the need for Alai to be a Kenyan twitter version of a shock jock, it is hardly surprising that he finds himself in trouble for accusing another person of murder. Alai claims, quite publicly, that he knows who dispensed off with the two individuals who were shot dead a couple of years ago, his freedom to say so must be weighed against his ability to be held to account for what he claims. If he cannot do that, the court will do it for him. Freedom of speech, essential as it is, has responsibilities attached to it.

  3. I doubt there is anything that can be added here. Lets watch and see how this fiasco unfold.

    Those who deny freedom to others deserve it not for themselves. – Abraham Lincoln

  4. Pingback: “Freedom Ain’t Free” – On The Integrity Bill and Online Freedom | Diasporadical

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