How freedom of expression and information may soon have you die in Kenyan Prisons

When Uhuru Kenyatta ascended to the Computer Misuse and Cybercrimes Act- 2018, it may have left us wondering which way forward for the freedom of expression in Kenya. There is a mixture of feelings that will emanate from one's perception, given which side he is on in law. Before we delve into the details of the Act, it is important to note that Kenyans have the right to be informed and even more importantly, the freedom to express themselves.

These two freedoms are constitutional and can not be wished away by the selfish desires of a few. The right to be informed is inevitably important to any growing or established democracy.

Under the Bill of Rights, Article 32 of the Constitution of Kenya- 2010 provides for freedom of conscience,belief, religion and opinion. I'm persuaded by the part that mentions "opinion".

Black's Law Dictionary (2nd Edition) defines opinion in Law of Evidence, to be an inference or conclusion drawn by a witness from facts some of which are known to him and others assumed, or drawn from facts which, though lending probability to the inference, do not evolve it by a process of absolutely necessary reasoning.

In essence, what this definition is telling us is that opinion need not be necessarily true since, ".... some facts from such a person may be known to him and some assumed.... or do not help to evolve it ( inference) by absolutely necessary reasoning."

It can therefore be comfortably concluded that opinion based on assumptions can be published without attracting a legal action because of the definition accorded "opinion" in law and or under Article 32 of the Constitution.

Article 33 of the Constitution of Kenya 2010 on the other hand, generates a very fundamental part of a human being.It allows into us, the freedom of expression and notes accordingly that every person has the right to freedom of expression which includes freedom to seek, receive or impart ideas, freedom of artistic creativity, inter alia.

It must be noted however that as much as it extends that right for every person's exploitation, it is quick to add a condition on it, which condition demands that in exercise of the freedom of expression, a person ought to be cognisant of the reputation and rights of others and respect them accordingly.

The Article further excludes the right to freedom of expression from expressions that sustain propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or has innuendos that propagate grounds for discrimination.

What this Article is doing is the art of balancing. It is trying to create an equilibrium between the bearer of the right and dispenser of such a right. It allows for freedom of expression but expects whoever is benefiting from it to be cautious not to harm the reputation of his victims.

What, then, happens in a situation where the freedom of expression is telling the truth? The answer is, truth must be told but in a civil manner.

Article 33 gives media and every person the right to impart ideas, the right to inform and further, the right to be creative. All these must be exercised with some decadence and decorum to avoid creating "obscenity" in expressing one's feelings.

Further in the Constitution, lies a gift in the name of Article 34 which pushes for the freedom of the media, and insists that freedom and independence of electronic, print and all other types of media is guaranteed. It is however quick to add a disclaimer that such a freedom does not extend to any expression expressed in the earlier Article and warns that the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium, or penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.

What this Article is emphasising is a need for not just an independent media but a State that essentially realizes the need for such independence.

Further, Article 34(5) of the constitution of Kenya 2010, calls for the Parliament to enact a legislation that will create a body that overseas regulation of media at large. That body is clothed with independence from government and is further nourished with the ingredient of ensuring that media standards are created, met by players and sustained, and that in its formation and functions, the body is expected to meet and reflect the interests of all sections of the society.

It is therefore true from the foregoing that what the Constitution is doing is essentially, and vehemently refusing to tolerate any State interference in the issue of control of the media. So deliberately does it, that it ensures that away from government, it creates a special body and clothes it with such powers to reflect upon media and create control standards.

It is, hitherto, true that government, unless in the situations posted expressly by the Constitution, cannot whatsoever purport in any way to usurp the powers that are inherent to the body that is to oversee media industry, be in it in legislation or any other uncouth and unorthodox means.

In regard to Article 35 of the 2010 Constitution, Kenyans have been allowed the right to access information held by the State and information held by another person but such information is required in ernest protection of a right and fundamental freedom. It is further provided that a person has the right to correction or deletion of untrue of misleading information that affects the his person.

This Article is critical in ensuring that before one moves to court to seek a defamatory remedy for instance, he ought to have sought that such information be corrected and or have the whole untrue and misleading information deleted. The point being driven here is that it is not in the interest of justice to purport to legislate Acts that demean this noble step in law, and worse still, to legislate Acts of parliament that tend to skip this noble part of a legal approach and instead install litigation, unfairly so, as the stage of first instance in resolving issues that relate to published untrue and misleading information.

Cyber crime is one of the leading crimes across the world and Kenya is therefore no exception player in this vice. It is estimated that about Ksh. 60 trillion is lost universally thanks to this crime. Locally, you may have about phone or mobile phone fraudsters asking you to send account details or money to a given number.

It is common knowledge that hacking is a serious crime not in terms of punishment but on how it threatens national security. For instance, it shall not escape our memory that in the 2017 presidential elections, hacking was an area of contention and to-date it can not be clearly told, who it is that won the first round of the presidential elections following the Supreme Court's nullification of the same on the basis of inconsistency, and the alleged failure and court contempt by IEBC to open the servers to confirm whether or not results were interfered with.

The cases as mentioned here and many others related to these, subscribe to what are cyber crimes. These crimes can only get worse especially if it is your data, or privacy that is being infringed upon by the perpetrator. Such must not just be punished but be punished reasonably so that we do not end up hindering right thinking members of the society from demonising social evils by the aristocracy, which as things seem, is choosing to hide under harsh penalties to hide themselves from public scrutiny.

Kenyans must be aware that all State Officers ought to subscribe to a give level of national values and principles of governance as prescribed under Article 10 of the 2010 Constitution. This Article emphasizes that the national values and principles of governance bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution, enacts, applies or interprets any law or makes or implements public policy decisions.

This Article goes forth to enlist what should be considered as national values. In essence, when a person fails to meet those values, the public has a right to be informed and the constitution is generous enough to allow everyone the power to inform, not expressly, but impliedly, by not mentioning a reserved person to be the only to inform the masses. So everyone has got the right to inform the masses.

It can be concluded from those provisions that persons must belong to a given degree of standards. We therefore must find a medium that breaks the news about a misbehaving deputy governor or an Mp that is having affairs with young boys, or one that is grabbing land belonging to a school inter alia. That therefore gives us a chance to make sure that we do not rely on suspects to tell us about fellow suspects, but that we break news when and if we come across it. How we get the news is not anyone's business, for sources of news are protected by law: no one can be compelled to declare his source of news, except by a court of law.

We must agree that Computer Misuse and Cybercrimes Act - 2017, brings to us many benefits but it is bound to arrive with many disadvantages. The penalties that are prescribed in the Act are abnormal, insane and a hindrance to the media industry and contrary to the general good of the rule of law and international Human Rights.

In issues of child pornography, punishment meted out to offenders is in fact, perfect in relation to deterrence. It is worth noting here that for crimes that affect child rights, it will be universally important to see the world make a united suppression of such offenders.

However, the punishments in terms of fines expressed here in regard to other offences are only intended to disallow growth of rights and freedoms that are essential in any democratically healthy State.

Be that as it may, it is important that for generations to come, we make a concerted effort to leave behind us a State free from oppression of expression. That can be done if bad laws are challenged.

Stiffer penalties are required in society not to punish but to deter offenders. Stiffer penalties do not mean condemning the citizens to a perpetual sentence in prison, by placing fines that can not be met by the larger part of the society. What that means is that freedom of expression is, going forward, meant for those that can afford those hefty fines especially where the powers that be can connive and turn facts against a publisher.

Judges must remain alive to this perversion of justice by legislators, who in attempts to protect their actions in future, may hide in legislating hefty fines to lock out whistle-blowers.

Kenya, being the corrupt country we are, a country where NYS billions can be carried in sacks across streets, cannot afford to hinder whistle-blowers from informing people of such ills.

Imagine the NYS Season 1 scandal, where EACC had cleared officials of any wrongdoing and declared that no scandal had ever happened at NYS. Whoever was a whistle-blower under this Computer Misuse and Cybercrimes Act - 2018, would have been jailed or paid a fine in its millions.

We must question our conscience how a junior officer whose pay is below Ksh. 30, 000, be able to whistle-blow a scandal in a ministry, knowing very well that his boss is the one expected to actually probe and declare whether his is false or misleading information?

Governor Waiguru. She claimed to be whistle-blower in
NYS scandal.

In a country where the investigating bodies can quickly and easily collude with the offender, depending on the price placed on the table, it is merely bad manners to let such a law sit pretty with us. In a country where the state can hide truth to save the corrupt, it is only ecclesiastical that we embrace a united approach in panel beating the otherwise ridiculous Act, that is Computer Misuse and Cybercrimes Act - 2018.

We have enough solace in our Constitution and must look up to it to offer us what our legislators have failed to.

It has some merits but its demerits are dire in the extreme. Prisons will soon consume our sovereign power to protect us from the "hyenas" who want it all for themselves, and are ready to spend their all to silence any voice of the voiceless through such archaic, stone age and despotic fines, found in the Computer Misuse and Cybercrimes Act - 2018.

Prisons will soon consume sons of this soil. Kenya will soon consume its own children, and when the crocodiles begin to eat their eggs, stranger run away.