Kenya's Dilemma: Constitutional Protected Privacy vs. Hate Speech

Approximately 1300 people were killed and over a half a million persons displaced in the wake of the 2007 Kenyan Presidential elections. Many commentators pointed to inciting political language as the primary mechanism which fueled ferocious unrest. The government was left to answer what could be done to prevent future recurrences. Businesses, especially communications media, were left to answer how to prevent future recurrences.

One apparatus for preventative change was the passage of the National Cohesions and Integration Act of 2008 which established the Kenya National Cohesion and Integration Commission (NCIC), an agency whose primary duties include the promotion of ethnic harmony as well as being imbued with investigative authority into ethnic/racial relations. A truly difficult tasked faced by the NCIC was defining hate speech (Integrated Regional Information Networks, 2012), a challenge akin to Supreme Court Justice Potter Stewart’s struggle to define pornography.

Some guidance arose from the 2010 Kenyan Constitution in which the freedom of expression, a right granted to every person, specifically sates that personal expression does not include “propaganda for war; incitement of violence; hate speech; or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any ground of discrimination” (Kenya Law Reform Commision, 2010). The challenged remained though in balancing censorship against another constitutional guarantee where “every person has the right to privacy, which includes the right not to have…the privacy of their communications infringed” (Kenya Law Reform Commision, 2010).

In 2012, the National Communications Commission of Kenya (CCK) further required the installation of Internet traffic monitoring equipment, the Network Early Warning System (NEWS), by all Internet service providers. Additionally, the CCK promulgated the “Guidelines for the Prevention of Transmission of Undesirable Bulk Content/Messages via Electronic Communications Networks”. Likewise, they also banned the use of any language other than Swahili and English when proliferating political messages during designated campaign periods in an attempt to deter outside influence and reduce violence stemming from ethnic nationalism amongst tribes (Integrated Regional Information Networks, 2012).

One dominant media entity Safaricom, with a 63% share of mobile subscriptions as well as a 69% share of internet subscriptions (Freedom House, 2013), took an early lead in working with and embracing the Kenyan government’s desire to mitigate political violence. According to the Digital Dangers report, “one of the main sources that helped model Safaricom’s internal guidelines were those issued by national newspapers on political advertisements” (Purdon, 2013).  Safaricom’s actions to target bulk short message service (SMS) message requests, a response to the unrestrained violence surrounding the 2008 elections, were intended to curb “any language…that was “partisan” or sought to divide communities” (Purdon, 2013) while also reducing corporate culpability under Kenyan law. Although 68 bulk SMS requests, totaling 963,762 text messages (Gathura, 2013) were processed within 48 hours of the 2013 election, only 1 was blocked for content (Stair & Reynolds, 2014).

A later investigation unveiled a “Blue Coat PacketShaper appliance – a device that can help control undesirable traffic by filtering application traffic by content category”  (Freedom House, 2013) – but it was not determined to have been employed in any political censorship initiatives.

The 2013 elections, in comparison to the tumultuousness of the 2007 elections, transpired in a manner of quiet democracy baring the fact the “elections passed with only one attack resulting in the death of six police officers” (Stair & Reynolds, 2014). Nonetheless, human rights watch groups still argued that the targeting of only bulk SMS were insufficient as such selectiveness failed to filter peer-to-peer text messages. While Safaricom’s resolve to seek guidance, abide by the people’s Constitution, and balance privacy against censorship demonstrates a commitment to ethical behavior, the success of government and business driven initiates to minimize violent partisan conflict cannot be deemed successful only by a reduction in violence. Atsango Chesoni, Executive Director of the Kenya Human Rights Commission, expressed that, while positive steps are being advanced, ineffective enforcement of hate speech statues and subsequent failed prosecutions shall serve continue to foster divisive rhetoric (Integrated Regional Information Networks, 2012).

Reference List

Freedom House. (2013). Freedom on the Net: Kenya. Retrieved from Freedom House: https://freedomhouse.org/report/freedom-net/2013/kenya

Gathura, G. (2013). Kenya: Safaricoms' Bulk SMS Filter on Hate Speech Now a Global Case Study. Retrieved from Standard Digital : http://www.standardmedia.co.ke/business/article/2000100677/safaricom-s-bulk-sms-filter-on-hate-speech-now-a-global-case-study

Integrated Regional Information Networks. (2012). Taming Hate Speech in Kenya. Retrieved from IRIN: http://www.irinnews.org/report/96168/analysis-taming-hate-speech-kenya

Kenya Law Reform Commision. (2010). Consitution of Kenya. Retrieved from Kenya Law Reform Commision: http://www.klrc.go.ke/index.php/constitution-of-kenya/112-chapter-four-the-bill-of-rights/part-2-rights-and-fundamental-freedoms/199-33-freedom-of-expression

Purdon, L. (2013). Digital Dangers: Corporate Responses to Hate Speech in the 2013Kenya Presidential Elections. Institute for Human Rights and Business. Retrieved from https://www.ihrb.org/pdf/DD-Safaricom-Case-Study.pdf

Stair, R. M., & Reynolds, G. W. (2014). Fundamentals of Information Systems (8th ed.). Boston: Cengage Learning.