Why the Kenya government cannot legally regulate social media

The proposal by Dennis Itumbi, the State House Director for Digital and Diaspora Media that government is considering regulating social media cannot be realized without negating core constitutional provisions.

While speaking at Kiangima Girls Secondary School during a prize-giving day, he said the government is preparing a Bill seeking to regulate the use of the social media in Kenya. Itumbi added that bloggers and other social media users were misusing the platforms by spewing hate messages and maligning their perceived enemies as there are no proper laws to guide them.

In his view, the social media platforms are currently operating on self-regulation, with no laws to guard against misuse of the channels.

He was quick to clarify the modalities on how this could be realized by suggesting that the manner in which journalists are regulated under the Media Council of Kenya (MCK) should be used.

How do you even develop such a law? I spoke of self regulation backed by law referencing the Media ACT model https://t.co/7WFj8bJmah

— Dennis Itumbi (@OleItumbi) June 6, 2016

His suggestion will however be difficult to realize going by the reality of how social media operates, various case laws and constitutional provisions.

Kennedy Kachwanya, the Chairman of the Bloggers Association of Kenya said the laws are not necessary.

“The new regulations are not necessary because there are already laws that can remedy situations where there is hate speech and even defamation. There are however laws that are needed to make the online space safer especially for women and children and that’s what I feel the government focus should be”.

Victor Bwire, the Deputy Director of Media Council of Kenya said this is a conversation that has been going on for some time. He alluded to the media being in the same position prior to the Media Council Act of 2007.

People like Joe Kadhi and Wangethi Mwangi among others had already come up with self-regulating mechanisms. They however found it difficult to enforce them. This is how government came in to pass the law which is still self-regulating but backed by law.

In his view, the move is laudable so long as it also seeks to ensure self regulation is maintained.

The Bloggers Association of Kenya (BAKE) already have some code of ethics to inform its members. This is a good step that could lead to self-regulation backed by law, he added.

Currently, MCK regulates what media says both in the news channels and also social media accounts. The council has taken an issue with some journalists in leading media houses who have been overboard in their online messaging and written to them seeking to know whether the said journalists are still their employees since they are disregard laid down code of conduct for journalists. In addition, the letter seeks to find out whether the media houses have clear social media policies to guide journalists.

The legal position on freedom of expression provides a stop gap measure for any sort of freedom of expression regulation that does not conform to constitutional guidelines in Article 33 of the Constitution. It is a position affirmed in various judgments by the High Courts Human Rights and Constitutional Division on several cases.

During the Security Laws (Amendment) Act, section 29 of the Kenya Information and Communications Act (KICA) and the Judicial Review Miscellaneous Application 30 & 31 of 2014, Judges have been unequivocal, striking out sections of the law that infringe on article 33. Any limitation beyond the four stated in Article 33 have been declared unconstitutional. It is the same fate that any measure of regulation will face, should government make good its intention to regulate the online space, something it has said in the past three years.

Nairobi University’s School of Journalism Lecturer Dr. George Nyabuga scoffed at the Dennis Itumbi’s idea, saying Dennis is not alive to the reality of social media.

It cannot work. Regulation means offending constitutional provisions on freedom of expression. Kenyans are using the medium to express their issues, ideas and also challenge government and that is something you cannot just regulate. Social media has become a critical voice, challenging mainstream media and government that is today central to good governance in the country.

He added that any attempts to regulate the online world will lead to people going underground. They will still create the content the government feels uncomfortable with but the same government will not be able to trace their location because while they are within the country, they can route their location to anywhere in the world.

Amending any section of the Bill of Rights in the Constitution requires a referendum, something the government is unlikely to entertain, leave alone succeed.

The limitations set in Article 33 on freedom of expressions include propaganda to war, incitement to violence, hate speech and advocacy of hatred. In her Judgment on section 29 of KICA, Justice Mumbi Ngugi said that any limitation to freedoms cannot be beyond the recommendation limitations in Article 24, being open and democratic, reasonable, based on human dignity and freedom. The argument was also affirmed by Justices Isaac Lenaola, Mumbi Ngugi and Weldon Korir when they declared some sections of the MCK (Amendment) Act 2013 as unconstitutional because they had broad and vague limitations on freedom of expression.

Dr. Nyabuga added that while BAKE’s model is laudable, the code of ethics is voluntary and limited to its members. Achieving a universal or blanket regulation for all Kenyans online is unfeasible.