The Bloggers Association of Kenya (BAKE) is going to court to challenge the validity of parts of the country’s penal code which the organisation believes represent a threat to online freedom.
In court papers it filed in the High Court of Kenya in Nairobi, the Association says section 77 and 94 of the law could be used to charge bloggers, journalists and online activists.
Section 77 (1) (F) of the penal code prescribes a mandatory imprisonment of up to seven years for “any words with a subversive intention, prejudicial to public order, the security of Kenya or administration of justice.” while Section 94 (1) criminalises free expression in a public place or at a public gathering.
In a statement BAKE says it hopes that the Kenya’s courts, “that have in the recent years been progressive in striking out various section of the penal code would also do the same.”
Advocate Hellen Ngessa, who is representing BAKE in the case, says the two sections must be declared to be unconstitutional for their vagueness, among other factors.
“The haziness of the two sections leaves it to the court’s subjective assessment whether a defendant is convicted or acquitted. The sections require a subject to await the interpretation given by the court before he can know what is not prohibited. Thus the sections permit too wide a margin of subjective interpretation, misinterpretation and abuse in determining criminal penalties.”
Yarik Turianskyi, Deputy Head of the Governance and African Peer Review Mechanism (APRM) Programme at the South African Institute of International Affairs described Kenya’s cyber policies as a “mixed bag” in a research paper released by the institution last month.
“While the country’s Access to Information Act 2016 paves the way for citizens to seek information from government agencies, officials have also been abusing older laws to silence dissenting voices. Specifically, Kenyan authorities often utilised the ‘improper use of licensed telecommunications gadget’ under Section 29 of the Information and Communications Act. It criminalised publishing information online that was deemed unlawful by authorities. In a positive move, this section has recently been declared unconstitutional.”
In a 2016 report by Freedom House, which outlined the findings from an assessment of 65 countries globally, Kenya and South Africa were defined as ‘free’ in terms of freedom on the internet.
The report also made reference to the arrest of journalist Yassin Juma for using Facebook to report on an attack on Kenyan forces stationed in Somalia.