A backlash on digital rights keeps activists on alert

Key Findings

— Kenya outperforms regional neighbors when it comes to freedom of expression, but these freedoms are in danger
— Controversial provisions of a new cybercrimes bill have been suspended after opposition from digital rights organization
— A thriving civil society has won several victories against repression, such as preventing an Internet shutdown during the 2017 election
— The government has been strengthening its monitoring and surveillance capacities

Kenya’s 2017 general election marked an important turning point for civil engagement in digital rights. Amid rumors that the Kenyan government was planning an Internet shutdown at the time of the vote, Kenyan citizens took to the web to voice their opposition. Using the hashtag #KeepItOn thousands wrote messages calling for the government to back down. In the end, they won. The communications regulator promised to keep the Internet up and running throughout the election.  

When it comes to free speech, Kenya is a regional leader. Freedom of expression is enshrined in the new constitution that came into effect in 2010. “Kenyans enjoy these open spaces because a lot of work has been done in reforming the constitution. We often refer to it as a ‘second liberation’ because it offers a lot of rights for the media,” says Grace Mutung’u from the digital rights organization KICTANET. However, constant vigilance is necessary to protect such civil liberties. Some controversial laws have been passed, bloggers have been arrested and the government has upgraded its surveillance capacities. Despite the onslaught, Kenya’s civil society has shown little sign of giving up the fight.

In May 2018, Kenya’s Computer and Cybercrimes Bill was signed into law. Some of the law’s overly broad provisions have angered campaigners. Such as plans to introduce prison sentences of up to 10 years for “publishing information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation or others”. Ephraim Percy Kenyanito from Article 19 says such sweeping punishments could be harmful to freedom of expression in Kenya. BAKE, the Bloggers Association of Kenya, filed a petition challenging the constitutionality of several provisions of the law. As a result, 26 sections of the Act have been temporarily suspended, pending a final decision by the high court.  

Defending fundamental rights

In addition to a strong civil society, digital activism is also thriving in Kenya. In 2018, several organizations successfully challenged legal actions taken against 52 bloggers. Some of whom had been arrested on the grounds of the Kenyan Information and Communication Act. “Most of them were whistleblowers or had used information that was unfavorable to those in power,” says Kenyanito. But

The #KeepItOn campaign was successful in prohibitting an Internet shutdwon in Kenya

Kenya’s independent judiciary made several rulings defending fundamental rights. Kenyanito explains that “in Kenya we have a whole ecosystem behind the judiciary that is knowledgeable about digital rights issues and that also supports journalists”. There are, however, still holdovers from the time preceding the country’s new constitution. “We have a lot of old laws from the old systems that are still used today and that are regularly used to curtail open spaces,” says Mutung’u. According to her, the participatory nature of the constitution is civil society’s strongest weapon. She says that “as much as the leadership has changed, the structures for engaging the public have remained”. The 2010 constitution mainstreamed the idea of public participation in government processes and defined citizens as the defenders of the constitution. 

Data protection and surveillance 

Kenya doesn’t have a data protection law, leaving users to guard their privacy alone. The extent of the problem became apparent when it was revealed  that the data analytics company, Cambridge Analytica, was mining the personal data of millions of Kenyans. Then using it to micro-target voters in the national elections. “Even as we digitalize, we should remember it is about humans and that we want a people-centered digitalization,” says Mutung’u. KICTANET is among a handful of privacy campaigning groups that helped to create a Draft Data Protection Bill, released in August 2018. 

Civil society groups and the government have also struggled over concerns about the growing use of surveillance technology. Reports by Citizen Lab and Privacy International revealed evidence of the use of surveillance software capable of hacking passwords, private messages, and tracking movements via mobile phones. In some cases, it’s alleged that mobile operators shared the information with the authorities. “These surveillance technologies obviously have an effect on freedom of expression. If you know that every move is being followed, it creates a chilling effect. How much you can question the government? How much you can question leadership in general? And how much you participate in political discussion?” says Mutung’u. 

What experts say

Grace Mutung’u on literacy of policy makers regarding digital rights issues:

“Before the elections, there was quite a lot of advocacy aimed at increasing understanding of the Internet among the wider society. So by the time election matters were going before the courts, you could see that the judiciary had a really good understanding about the importance of the Internet during elections.” 

Shitemi Khamadi from the Bloggers Association of Kenya (BAKE) on involving the general public:

“The current digital rights community mainly involves experts on these issues. The next frontier is about getting the general public to contribute to policy interventions and the national conversation on digital rights issues.”

Ephraim Percy Kenyanito on the 2016 Access to Information Law:

“One of the positive things is the existence of this law. It hasn’t yet been fully implemented but we are getting there. The law is just one and a half years old. We need to create more awareness of it.”

Recommendations

 — Keep up pressure against repressive laws
Ephraim Percy Kenyanito from Article 19 is convinced that Kenyans need to keep on fighting such laws by filing petitions and going to court, “especially when the laws are not in the spirit of the constitution”.

— Be proactive
Civil society in Kenya is strong, but in many cases campaigners were reacting to actions by the authorities. Civil society should strive to be more proactive.

— Find strong allies
The digital rights community needs to partner with traditional civil organizations and convince them to expand their programs to include digital rights issues. 

— Digital rights literacy
There is a need for civil society to raise awareness of digital rights, especially among young people. “Having digital security and digital rights be part of the school curriculum would be a major step,” said Ephraim Percy Kenyanito.

— Find homegrown solutions
Kenyans have a tendency to adopt things that were developed in other countries. “There is a need for homegrown solutions, especially when it comes to mobile technology, as this is what matters most in Kenya,” said Grace Bomu.

The #speakup barometer is a DW Akademie project that examines the connection between digital participation, freedom of expression and access to information. Learn more at www.dw.com/barometer