Following the arrest of a Kenyan blogger yesterday over charges that he posted illegal tweets, there has been some questions raised as to what an illegal tweet is and what it is not. Many Kenyans on Twitter and other social media sites have downloaded the Kenya Information and Communications Act to try and understand what exactly the crime Alai is alleged to have committed is, and – perhaps more importantly, to them at least – to find out if their own tweets, wallposts, texts or other communication could land them in jail.
This is what Section 29 says:
29. A person who by means of a licensed telecommunication system—
(a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person
commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.
If we simplify it to a flow chart, these are the questions you need to ask yourself to figure out if you are posting something illegal or not
A few clarifications:
‘by means of a licensed telecommunication system’
The Act has a fairly comprehensive definition of what a telecommunication system is- basically any system that conveys sound images data or other signals through electric, magnetic, electromagnetic, electrochemical or electromechanical energy. That would include the phone signals, the internet and most technology that we use in digital communication
Of course this system must be licenced by the CCK for it to fall under this section. But don’t think of it as a loophole, because if you are found using unlicensed system then you would be in another different level of trouble !
‘sends a message or other matter’
Two things to note here
- The offense is sendingthe message, which means that there does not necessarily have to be anyone who received the message for you to be guilty of a crime. So, for instance, the fact that I wrote a blog post but nobody read it will not be a defense to a charge under this section
- This subsection mentions ‘a message or other matter’. a message could be a text message (sms) , a post on facebook or a blog , a tweet or even a comment on a web page – basically any writing sent by a telecommunication system. The ‘other matter’ referred to can include images, sounds or any other signals .
‘is grossly offensive or of an indecent, obscene or menacing character’
Unlike the case in the UK , for example , this subsection does not require that the courts examine what the intention of the sender was when s/he sent the message that is grossy offensive, indecent, obscene or menacing in character. This means that if a person is charged with the crime, it is enough for the prosecution to show that the message.
Its worth noting that it is the individual court who decides whether the messaqge is grossly offensive , inecent, obscene or menacing. It is not a science , in other words , and no units measuring the level of menace in the text has been developed.
‘sends a message he knows to be false’
Usually , where the intention of the accused is put to question, the wording will be ‘knows or ought to know’ so that he will still be liable if he could have reasonably verified the information but didn’t , (The key word her being reasonable ) However , since this is not how this section is worded, the prosecution will have to prove that the accused knew that the information was false
‘ for the purpose of causing annoyance, inconvenience or needless anxiety to another person’
The reason WHY the offending message was sent will be analysed by the court. It has to be one of the three above reasons. So can I be convicted if I say the purpose was to educate the public? The UK courts have said no, but it is to be seen what the Kenyan courts think about it
Anyone who wants to view the whole Act can download it here
simply kenyan law 
This seems to me an incredibly draconian law, even an infringement on the constitutional right to free speech. Annoyance, inconvenience and needless anxiety are no grounds to make a law. Indeed this is so broad, given that most human beings tell tall tales and exaggerate ALL THE TIME, that we can expect that this law will not be implemented except to harass those who have the temerity to annoy, inconvenience or cause needless anxiety to the powerful.
A lot of debate has been going on as to whether there should be any regulation of the Internet since this conflicts with the right to free speech. The argument for regulation has always been that your human rights ends where mine begin.
Again, the question of how you measure anxiety, for instance, and rule that it was needles and based entirely on the message as posted ( and not some other external factor) is something that the courts will have to grapple with. Perhaps we may even see a challenge to the Act on grounds that it contravenes the Constitution!
Question then is how do you value intention?
The court will decide this based on the evidence put before it. Like I said, there is no standard measure for intention, and it will depend on how well the prosecution is able to convince the court.
will this apply in the case which Paul Muite took Moses Kuria to court in regards to what MK had posted on facebook?
I don’t have the facts for this case, but if he was charged under section 29 then yes, the courts will consider the facts and decide whether they add up to an offence under the Act
[…] is a flow chart on Simply Kenyan Law, which has outlined the questions you need to ask yourself to figure out if you are posting […]