Kenya’s Security Act: Citizen Reporting

Image | Wambui Mwangi

For most of Kenya’s history, Kenya’s mainstream media, represented by the Nation Media Group and the Standard Media Group, has served state and elite interests. Even after the so-called second revolution, when the dictator Moi was sent into a dignified retirement and Kenya ostensibly entered a new progressive age, the mainstream media continued to promote these interests.

Citizen reporting has been greatly facilitated by digital media: news circulates rapidly via twitter, Whatsapp, Facebook, email groups, and blogs. Sites such as Mzalendo have made important legal documents available, and the award-winning Ushahidi, developed to crowd source information during the 2007-8 post-election violence, gave citizens a voice and platform when the mainstream media stayed silent.

Citizen reporting remains key to finding out the truth in Kenya and trying to hold the state accountable.

Key Changes in the Security Bill

Kenya’s mainstream media has tried to argue that the Security Act “gags” the media. This claim would be more credible were the media not devoted to advancing the state’s agenda. Instead, clauses in the Security Act attempt to stifle citizen reporting.

Article 12 of the Security Act inserts a new section into the Penal Code:

Prohibited publications and broadcasts.

66A. (1) A person who publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.

(2) A person who publishes or broadcasts any information which undermines investigations or security operations by the National Police Service or the Kenya Defence Forces commits an offence and is liable, upon conviction, to a fine not exceeding five million shillings or a imprisonment for a term not exceeding three years, or both.

(3) The freedom of expression and the freedom of the media under Articles 33 and 34 of the Constitution shall be limited as specified under this section for the purposes of limiting the publication or distribution of material likely to cause public alarm, incitement to violence or disturb public peace.

Article 64 of the Security Act inserts a new section into The Prevention of Terrorism Act:

64. The Prevention of Terrorism Act is amended by inserting the following new sections immediately after section 30—

Publication of offending material.

30A. (1) A person who publishes or utters a statement that is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism commits an offence and is liable on conviction to imprisonment for a term not exceeding fourteen years.

(2) For purposes of subsection (1), a statement is likely to be understood as directly or indirectly encouraging or inducing another person to commit or prepare to commit an act of terrorism if— (a) the circumstances and manner of the publications are such that it can reasonably be inferred that it was so intended; or (b) the intention is apparent from the contents of the statement.

(3) For purposes of this section, it is irrelevant whether any person is in fact encouraged or induced to commit or prepare to commit an act of terrorism.

 Prohibition from broadcasting.

30F. (1) Any person who, without authorization from the National Police Service, broadcasts any information which undermines investigations or security operations relating to terrorism commits an offence and is liable on conviction to a term of imprisonment for a term not exceeding three years or to a fine not exceeding five million shillings, or both.

(2) A person who publishes or broadcasts photographs of victims of a terrorist attack without the consent of the National Police Service and of the victim commits an offence and is liable on conviction to a term of imprisonment for a period not exceed three years or to a fine of five million shillings, or both.

(3) Notwithstanding subsection (2) any person may publish or broadcast factual information of a general nature to the public.

Both of these are supported by new legislation about digital evidence. Clause 31 of the Security Act amends the Evidence Act:

31. The Evidence Act is amended by inserting the following new section immediately after section 78 —

Admissibility of electronic and digital evidence.

78A. (1) In any legal proceedings, electronic messages and digital material shall be admissible as evidence.

(2) The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.

(3) In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—

(a) the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;

(b) the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;

(c) the manner in which the originator of the electronic and digital evidence was identified; and

(d) any other relevant factor.

(4) Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

Summary

Citizen reporting highlighted police extortion and violence during Operation Sanitization Eastleigh, and was crucial in highlighting the atrocity of #kasaraniconcentrationcamp. Valuable information about state-sponsored and state-facilitated violence and corruption comes to light because of citizen reporting. Restrictions in the Security Act attempt to silence independent media and citizen reporters. Silence has already started to fall.