Internet Shutdowns: Not the Answer to Harmful Speech Online
By: Berkman Klein Center
Tags: Kenya, Elections, Harmful Speech

By Grace Mutung’u

Although the Kenyan Constitution enshrines freedoms of conscience, expression, media, and access to information, freedom of expression is limited. It does not “extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others, incitement to cause harm or discrimination.”1 Hate speech is defined in the National Cohesion and Integration Act as the use or display of threatening, abusive, or insulting words or behavior with the intent of stirring ethnic hatred.2 There is also a Code of Conduct under the Elections Act (2011) that, beyond forbidding parties and candidates from acts of violence or intimidation, requires them to “condemn, avoid and take steps to prevent violence and intimidation.”3

Kenya will hold its second General Election under the new Constitution on 8 August 2017. Traditionally, elections are highly contested for many reasons; among them, leaders wield considerable power over who has access to economic opportunities, and voters are mobilized along ethnic lines. Since the reintroduction of multipartyism in 1991, there has been violence with every election.4

Aided by social media tools such as Whatsapp, Twitter, and Facebook, Kenyans have vibrant, but also sometimes abrasive, conversations online during election periods. The government, wary of the country’s deep history of violence surrounding election time, considers such dialogue as hate speech online, and responds to it in two ways: several agencies monitor online communications, and, should social media become “unmanageable,” the sector regulator has warned of its willingness to induce an Internet shutdown.5 This essay discusses three aspects of hate speech online and argues that enforcement of existing law would be more effective than stifling rights and shutting down the Internet.

Considering Hate Speech Online in Kenya

Three aspects of hate speech online in Kenya must be considered to fully grasp the problem’s intricacies. First, academics, activists, artists, and thought leaders use the internet to speak in ways that could be considered provocative, especially regarding societal issues such as governance and historical injustices. While such speech is not intended to cause harm, it often receives emotional comments that ultimately degenerate into tribal disparagement. For example, David Ndii, a writer, has been the target of several social media campaigns dubbed #DavidNdiiExposed for his articles, such as one that interrogates the notion of Kenyan nationhood.6 Such campaigns generate heated debates that have tribal undertones.

Second is the nexus among political messaging, ethnicity, and hate speech online. Kenyans carry antagonism built up during campaigning into the “governance” period,7 and this often surfaces online. After 2013 elections, the presidency set up the Presidential Strategic Communications Unit (PSCU), which actively engages the opposition politically on social media.8 The conversations are sometimes laced with vilifying statements that encourage a culture of reckless discourse and increase polarization.

A third consideration is the role of law enforcement in cases involving hate speech online. Two concerns arise: the first is the weak prosecution of high-profile offenders under existing laws, and the second is increased online surveillance. Since the run-up to the 2013 election, the public has been keen to call out content deemed hate speech,9 particularly from politicians, resulting in a few high-profile prosecutions. The most notorious is “Pangani 6,” in which eight parliamentarians from both coalitions were arrested for hate-mongering during political rallies.10 Despite video evidence of their utterances, which have been shared widely online, these and other such cases have been collapsing for lack of evidence or other technicalities. While Susan Benesch argues that the definition of hate speech in the Cohesion Act is ambiguous,11 weak prosecution has denied the judiciary an opportunity to interpret aspects of hate speech online.12

Alongside weak prosecution, law enforcement has also increased surveillance and monitoring, reminiscent of the 1980s.13 The National Cohesion and Integration Commission hired social media monitors, while the Communications Authority procured social media monitoring tools.14,15 There are no official reports on the nature and benefits of the surveillance but Privacy International links communication surveillance to extrajudicial killings.16

Toward 2017 Elections

Societal issues that arise due to hate speech require multilayered interventions, most of which are part of constitutional implementation. The role of state agencies is to protect space for speech — not diminish it. For instance, in April 2017 the main political parties nominated candidates, but the process was laden with logistical and functional inefficiencies.17 With contested results in the nominations, the availability of communications infrastructure gave the public an outlet to express their views about democracy and the flaws in the current system. This demonstrates the necessity for online connectivity during periods such as elections (an unrelated three-hour national blackout of the main mobile network operator, Safaricom, was reported).18

Non-state actors must continue to aid the public in contributing meaningfully and civilly to political discussions. This could be done by creating processes of accountability for political speech, as well as peace-building efforts such as those in the 2013 election.19 These include civic education and opening debates on issues such as land and corruption as healthy outlets for civil discussion. Self-regulation in community spaces, the media, and among service providers must also be encouraged.20, 21

Combating hate speech online is a collective effort, shutting down the internet should not be the answer to this problem. On the issue of enforcement of the law, the need for better coordination among agencies in the anti-hate-speech space cannot be overstated, as overall there is enough space within the law and judicial mechanisms to pursue perpetrators of hate speech online. When Kenyans play their part by identifying instances of incitement, state agencies should equally perform their role within the law.

Further, the Kenyan government has had a history of being overbearing and stifling freedoms. The nation is undergoing a rebirth through the new Constitution. Rebuilding the nation is a progressive task, but it also requires safeguarding the gains under the new dispensation. In the case of hate speech online, recourse to the law has not been tested enough to justify measures as drastic as shutting down the internet in response.

This piece is part of a collection of essays published by Harmful Speech Online Project at the Berkman Klein Center for Internet & Society at Harvard University

References

1 — Republic of Kenya, Constitution of Kenya, 2010.

2 — Republic of Kenya, National Cohesion and Integration Act, no. 12 of 2008, revised 2012.

3 — Z. Elisha Ongoya and Willis E. Otieno, Handbook on Kenya’s Electoral Laws and System, (Nairobi: Electoral Institute for Sustainable Democracy in Africa, 2012), http://aceproject.org/ero-en/regions/africa/KE/kenya-handbook-on-kenyas-electoral-laws-and-system.

4 — Maina Kiai, “Speech, Power and Violence: Hate Speech and Political Crisis in Kenya,” United States Holocaust Memorial Museum, April 23, 2010, https://www.ushmm.org/m/pdfs/20100423-speech-power-violence-kiai.pdf.

5 — “Kenya’s Communication Authority May ‘Block Internet’ During Elections,” PC Tech Magazine, January 13, 2017, http://pctechmag. com/2017/01/kenyas-communication-authority-may-block-internet-during-elections/.

6 — David Ndii, “Kenya Is a Cruel Marriage, It’s Time We Talk Divorce,” Daily Nation, March 26, 2016, http://www.nation.co.ke/oped/ Opinion/Kenya-is-a-cruel-marriage — it-s-time-we-talk-divorce/440808–3134132–2i7ea3/index.html.

7 — Peter Kagwanja, “Africa Is Suffering a New Bout of Populism,” Daily Nation, March 7, 2016, http://www.nation.co.ke/oped/Opinion/ africa-is-suffering-a-new-bout-of-populism/440808–3465976-udmn59z/index.html.

8 — For instance, the Director of PSCU, aggressively engages with the public and opposition coalition leaders through Facebook and Twitter posts, sometimes abrasively. It is rumoured that the ruling coalition has a team of 36 bloggers commissioned to tackle negative posts against the presidency. Conversely, the opposition also has dedicated “bloggers” who defend negative press against their leaders.

9 — E.g., Ushahidi and iHub Research, Umati Final Report, Prevent Violent Extremism Research Portal, June 28, 2013, https:// preventviolentextremism.info/sites/default/files/Umati%20Final%20Report.pdf.

10 — Vincent Agoya, “Court Detains Eight Politicians in Hate Speech Probe,” Daily Nation, June 14, 2016, http://www.nation.co.ke/ news/Court-detains-Cord-Jubilee-politicians-in-hate-speech-probe/1056–3249748-v5h34tz/index.html.

11 — Susan Benesch, Countering Dangerous Speech to Prevent Mass Violence during Kenya’s 2013 Elections, February 9, 2014, https:// www.ushmm.org/m/pdfs/20140212-benesch-kenya.pdf.

12 — For instance, R v Kioi (2013) where a musician was accused of inflammatory lyrics and R v Ngunyi (2016) where a popular political analyst was accused of publishing ethnic contempt. Both these cases would have provided an opportunity to interpret artistic and academic freedom against the limits to freedom of speech.

13 — Kevin Conboy, “Detention Without Trial in Kenya,” Georgia Journal of International & Comparative Law, 8 (1978): 441–461, http:// digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=2083&context=gjicl.

14 — Lynet Igadwah, “Agency Hiring Social Media Monitors to Track Hate Mongers,” Business Daily, January 11, 2017, http://www. businessdailyafrica.com/news/Agency-hiring-social-media-monitors-to-track-hate-mongers/539546–3514258–11ffr3jz/index.html.

15 — Joseph Wangui, “Agency to Monitor Social Media Use,” Daily Nation, January 29, 2017, http://www.nation.co.ke/news/socialmedia-use/1056-3790946-4kundt/.

16 — “Track, Capture, Kill: Inside Communications Surveillance and Counterterrorism in Kenya,” Privacy International, March 15, 2017, https://www.privacyinternational.org/node/1366.

17 — Nic Cheeseman, “What Party Primaries Mean for Kenya’s General Election,” Daily Nation, April 30, 2017, http://www.nation.co.ke/ oped/Opinion/-What-party-primaries-mean-for-Kenya-s-General-Election/440808–3908344-asokklz/index.html.

18 — Muthoki Mumo, “Safaricom Network Failure Paralyses Millions,” Business Daily, April 24, 2017, accessed May 8, 2017, http://www. businessdailyafrica.com/corporate/Safaricom-outage-communication-blackout/539550–3901452-i30g2gz/.

19 — For example, the Uraia Campaign, which is a joint civil society effort; Uraia Trust, http://uraia.or.ke/about-uraia-trust/.

20 — “How Media Covered 2013 Elections,” Kenya Union of Journalists, May 12, 2012, http://www.kenyaunionofjournalists.org/howmedia-covered-2013-elecions/.

21 — Charles Gichane, “Safaricom Issues Tough Rules on Political Messaging,” Capital News, June 16, 2012, http://www.capitalfm.co.ke/ news/2012/06/safaricom-issues-tough-rules-on-political-messanging/.