So, what is the legal basis for these
threats and statements? Are the threats and actions even legal? To answer this
question, let me take you on a legal journey.
At GizMunch, we’re not known legal experts, but we have a legal consultant, Diana—a constitutional lawyer—who guided our research on this matter. Let’s dive into it, with a heavy legal tone
William Kabogo was sworn in as the new ICT Cabinet Secretary a little over a
month ago. Since his appointment, he has threatened to fully restrict internet
access, citing a lack of morality — especially among Gen Z — as a key concern. He
first hinted at this during his appointment interview and reiterated it a month
ago, causing an uproar online and sparking my interest. This follows proposals
from Interior Cabinet Secretary Kipchumba Murkomen to have social media
companies establish local offices for regulatory oversight. These measures
remain controversial, as critics argue they may lead to increased censorship and
government control.
So, what are the provided legal framework for free speech?
Kenya’s Constitution is clear in its protection of free expression. Article 33
guarantees every citizen the right to freedom of expression — the ability to
seek, receive, and impart information, as well as enjoy artistic and academic
freedoms. However, this right is not without limits. It excludes propaganda for
war, incitement to violence, hate speech, and advocacy of ethnic hatred.
The Computer Misuse and Cybercrimes Act
of 2018 further supplements these constitutional rights by criminalizing
unauthorized access, cyber espionage, false publications, and cyber harassment.
While the Act aims to protect data and maintain the integrity of computer
systems, its provisions have raised concerns over vagueness and potential
misuse, potentially undermining legitimate free expression.
It is worth
noting, with these two, enforcement has sometimes been criticized for being
vague, which can lead to selective application.
The parameters of proper internet use
are provided for by the Constitution and the Computer Misuse and Cybercrimes
Act. There are clear limitations to freedom of expression — especially where it
infringes on another's rights. Should one not follow these bounds, they can be
prosecuted under the Constitution, the Cyber Crimes and Computer Misuse Act,
the Defamation Act, and any other relevant laws. It is important to note that
the Judiciary — the court of law — is the only body empowered to determine the
extent and effect of any infringement. Any other form of holding a citizen
responsible for misusing their freedom would violate due process and the rule
of law.
Moral & Social Perspective
A recurring argument from government officials centres on the need to enforce
moral standards online. However, Article 2(1) asserts that “This Constitution
is the supreme law of the Republic and binds all persons and all State organs
at both levels of government.” This means that moral judgments should never
override constitutional protections. While society grapples with the
implications of unfettered online speech, the principle remains that any
regulatory measure must align with the supreme law of the country.
Comparative Cases & Global Trends
Kenya is not alone in facing these
challenges. Examples include:
- Kenya: In
2024, during widespread demonstrations, the government allegedly throttled
internet access via telcos, affecting the flow of information on platforms
like X.
- South Sudan: In
response to violent attacks on refugees and a surge in ethnic tensions,
the government shut down social media platforms to curb the spread of
unrest.
- Uganda and Ethiopia: Uganda’s
internet shutdown during elections — justified on grounds of electoral
integrity — and similar measures in Ethiopia highlight a broader trend of
using digital restrictions to manage public order.
- International Example: The U.S. TikTok ban, driven by national security concerns, contrasts with
Kenya’s primarily moral justifications for restricting internet access.
Various reports from organisations like
CIPESA (State of Internet Freedom in Africa) and Freedom House (“Freedom on the
Net”) released during 2024–2025 paint a troubling picture of digital
authoritarianism in Africa. Internet shutdowns, censorship, and restrictive
measures on civil participation in countries like Ethiopia have significantly
constrained internet freedom, with authorities citing security situations to
justify disrupting connectivity and cracking down on online journalists.
Expert Opinions
Legal experts and tech bloggers have weighed in on these issues. Many emphasize
that while government concerns about harmful content are valid, the current
measures risk stifling free expression. Critics argue that vague enforcement of
cyber laws could lead to selective prosecution and an environment of fear,
where netizens self-censor. Meanwhile, some tech analysts note that imposing
physical operations on social media companies may hinder innovation and disrupt
the free flow of information.
Implications & Consequences
The government’s various moves—ranging from internet throttling to proposals
for increased regulation—carry significant implications:
- Chilling Effects: There
is a genuine risk that citizens will refrain from speaking out against
government policies, fearing repercussions such as surveillance,
censorship, abductions, or even potential murder.
- Legal Challenges: These
actions could prompt legal battles over the interpretation of Article 33
and the proper limits of the Computer Misuse and Cybercrimes Act.
- Political Consequences: If
unchecked, such measures may embolden political figures to further
restrict dissent, potentially undermining democratic principles.
It is crucial to recognize that
responsible use of the internet is defined by the legal framework. The
government’s mandate is to monitor and regulate communication and internet use
as per the Kenya Information and Communications Act. However, any attempt by
the government — such as that observed by the ICT Cabinet Secretary — to use its
legal arm to infringe on citizens' rights must be challenged in a court of law.
Only the Judiciary is empowered to determine the extent and effect of any
infringement; any other form of accountability is against due process.
Conclusion: Striking the Right Balance
Navigating the interplay of law, politics, and morality in Kenya’s digital
realm presents a complex challenge. While protecting citizens from harmful
content is vital, any state intervention must respect the constitutional right
to free expression. As we’ve seen, morality alone does not provide sufficient
legal justification for restricting internet access. Kenyans are empowered to
use the internet responsibly within clearly defined legal parameters. Those who
overstep these bounds risk prosecution under established laws, and it is the
role of the Judiciary to adjudicate such cases.
This is our crude breakdown — blending personal insights with expert legal analysis. Stay tuned to GizMunch for further updates and deeper dives into this ever-evolving debate.
