Kenya’s Slippery Censorship Slope

“I disapprove of what you say, but I will defend to the death your right to say it.” – Voltaire

Robert Alai is blogging scum. Make no mistake. The quality of a person is not found in what they say, but in what they do, and Alai has proven time and time again that he is a bad actor.

If you know Robert Alai’s history in the tech scene in Kenya, then you know why he has been banned from the iHub. There’s a reason why the Skunkworks community ejected him multiple times over many years. There’s a reason why Nokia banned him. There’s a reason why Google blacklisted him. He consistently libels individuals for personal gain, to draw traffic and monetize his sites. For him it’s about attention, any way that he can get it.

Yesterday, the newswire said that Robert Alai was wanted. Today’s news is that he has been arrested for tweeting about the Kenyan government’s official spokesman Alfred Mutua. (fuller backstory here)

A lot of Kenyan’s on Twitter are laughing at Alai’s current predicament, after all, it is fun to see someone of his particular uncouth makeup get their comeuppance. The problem is in how and why this is being done. While you laugh today at Alai, tomorrow they will come for you.

However…

This isn’t about Alai, he just happens to be playing the role of a jester, distracting us from the much greater story that is online and media censorship in Kenya. There were many of us who warned against the real danger in 2008 and 2009, this Kenyan Information and Communications Act that allowed for censorship based on fuzzy details and definitions, and how it could all be done at the behest of one man, with little oversight. While everyone wants to laugh and point fingers at Robert Alai, they won’t be laughing when this censorship gets applied to him.

This all stems from the Kenya Informations and Communications Act (PDF Version), which was amended after the post-election violence in 2009 in an effort to curb hate speech. It is a controversial amendment of the Kenya Communications Act, 1998 because it gives the state power to raid media houses and control the distribution of content.

Of course, the media houses only cared because of the fear of it applying to them. However, they’re already mostly muzzled due to in-house nepotism, links with political parties, and more importantly don’t want to upset the hand that feeds them: the millions that they get from corporations, the government and political parties who advertise with them.

It is for this very reason that bloggers are so important, why Twitter and Facebook matter. It’s through these channels that people can speak truth to power.

“SMS, blogs and websites were an essential source of information, opinions and images. Innovative ways of capturing news and events as they unfolded – for instance, by using mobile phone cameras and uploading images onto the internet – increased access to information during those critical months. The downside of this increased access to information, however, was the use of the same media to spread messages of ethnic hatred, intimidation and calls to violence.”

There in lies the issue, that the medium used for so much innovation, democratization of information, and empowering of ordinary people can also be used for misinformation.

Let’s look at the details

I am not a legal expert, so I am quite interested in hearing from someone who understands and knows the real definitions of the terms here.

“We summoned him on Thursday and we hope to see him probably and latest Tuesday (today). He has violated sections 26, 29 and 30 of the Act and we feel he should come and tell us more,” said Kamwende.

So, let’s take a look at this.

Section 26
Deleted, it doesn’t even exist in the law…

Section 29

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.

Section 30

30. A person engaged in the running of a licensed telecommunication system who, otherwise than in the course of his duty, intentionally modifies or interferes with the contents of a message sent by means of that system, commits an offence and shall be liable on conviction to a fine not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

Now, Section 26 doesn’t exist and Section 30 seems a stretch, because as far as I know Robert Alai doesn’t run, own or license any telcoms system. Instead, let’s focus on Section 29, which seems to be more relevant.

Alai is likely being held for Section 29(b). He’s well known for libel and defamation, and someone is finally penalizing him to the full extent of the law. People need to be held to account for what they say, freedom of speech comes with responsibility. This fine line is where and why the law actually matters. It’s about what the law is, who defines it and how it is followed through on.

The real issue 4 years ago, and why this act was opposed by many, is that the act contained controversial provisions that sought to allow security agencies to seize property without due process, arrest and indefinitely detain suspects.

What the question should be for all of us with Robert Alai, is whether that is being tested on him. Was/is there due process? Who decides which media company gets raided? Who gets to say which blogger gets arrested, or which person on Twitter said the wrong thing?

43 thoughts on “Kenya’s Slippery Censorship Slope

  1. Jaffar Mohamed

    I am not very active on Twitter but on the few occasions that i have come across a tweet from Alai his language and tone is always despicable and almost designed to destroy others. I mean, we can have a conversation without being abusive and without pulling others under the bus. We cannot legislate decency, intelligence nor maturity but those areas that are within the law should be applied to the maximum in this case.

    Social media is a powerful tool, however the tragedy is that in Kenya it’s a tool to spread hatred, to feed the ego and to settle scores. It looks more like a playground of idiots.

  2. wanjiku

    Erik,
    Good point you raise. I was wondering what would have happened if the person arrested was a media owner or works in mainstream media? Its a bad precedent and many of us might be affected when someone goes to the cops just because they feel offended by what you tweet.

    Make no mistake, some people on social media are reckless but I know I have pushed the limits sometimes. The ambiguity is worrying and as much as people may not feel like it touches them, its a raw nerve and no one will be spared.

  3. Yumbz

    Going by the alleged accusations, it appears that he has violated 29b and the onus is on the prosecution to prove this. I believe a complaint was made against him, so that takes care of the “Who gets to say which blogger gets arrested” in your question.
    I do not see the case being a threat or having far-reaching ramifications to our collective freedom. Everyone should be accountable for whatever message they send or share.

  4. wiselar

    I have been very curious on this and have been asking around for anyone who understands this Act to explain why Alai is under arrest.

    Of more importance to me, is the precedence this sets. While Alai had it coming, what of the larger online community? With the influence online personalities have, I feel that the government is closely watching and seeks to have more control of the space.

    Let’s see how this plays.

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  6. Isaac

    Haven’t been following on this recent Alai scandal, but am just curious why he is always on the wrong side of the divide. i have seen a few tweets and blog posts about him plus the recent kicking out at the iHub. I think he is having some issues and maybe he needs some form of law enforcement to shape up.

  7. nairobian

    Pertinent questions – kind of reminds one of the phrase when they came for the trade unionists i did nothing because I wasnt one of them it ends When they came for me noone raised their voice there was noone left – ili iwe funzo even those disagreeing one day someone will haul you off to some station on a vague law – the beginning of Greendam

  8. shitemi

    I think this is a good case. The merits of it being to test the freedom of information vis a vis the responsibilities it comes with it. I also think it is a good case because it is a known figure on social media. Furthermore, as elections draw near, it offers a chance for new media people to rethink what they say.For traditional media, they are held accountable for what they say and what they allow to be said. I am not a lawyer but think this is progressive. It offers the chance to ask to what extent, legally, one’s social media account is reflective of him or her. Well it is alleged too that Alai has masquerade some accounts, like the Kenya Police one on twitter. I hope when time comes, if for instance people are asked to prove that indeed it is Alai, folks will come out. I remember the Hate Speech case against Hon Machage and Hon Kapondi. One of the decisive aspects of the case was that media houses refused to take ownership of the videos presented in court. The case was therefore lost, so to speak. To a new media enthusiast, it is in such incidences that learning takes the front seat.

  9. jke

    I think the “Voltaire” quote is spot-on but this incident also reminded me of the infamous Michuki quote with the snakes. I also find it very interesting to see with what kind of criticism people in Kenya were arrested or exiled during the Moi era, and with what kind of real crimes people are getting away with these days. So going by this new scale, he must have pissed off quite a few influential heads.

  10. mmnjugâ„¢

    This quote “I disapprove of what you say, but I will defend to the death your right to say it.” – Voltaire sums it all up.

    Alai may be hated for his drama, True….. but even then, I would rather err by giving him the benefit of doubt than the GoK…. any time, and twice on Sunday. iRest.

  11. Kahenya

    I’m not gloating, I might have smiled for a minute (I am human) on account of the said given past between me and Alai. Look, I am not a sadist, and I am not trying to be one but you have got to “love and admire” the government’s “creativity and ingenuity” when it came to this. Very crude and basic for the purpose they wanted to achieve. Alai was the best litmus test for how far the government was willing to go, including charging him with a missing section of the constitution. And they were willing to go this far. Once cops get all “hands on” on your ass for one night, as they did Alai, well, I guess only him and his ass know what went down, I can tell you he probably did not need to go to court and the case will probably get dropped eventually, but everything went down last night and I don’t think even Alai wants to talk about it or think about it.

    Flip. If this is about censorship for real, f*** it, gava is wrong and we should be on the offensive, not the defensive. If this was some personal sh** disguised as censorship, f*** it, f*** Alai. He makes a good scapegoat.

    My comments here remain my comments, independent of Erik’s post. Don’t mix the two up.

  12. Kimutai Cherono

    The crux of the clause 29 is ‘message that he knows to be false’ it is legally difficult to prove this unless a person is dumb enough to boast, say otherwise and such malice can be prosecuted.

    As for me ‘it is fun to see someone of his particular uncouth makeup get their comeuppance.’

  13. George

    As we empathize with Robert, we also need to accept that we need to be responsible and avoid personal attacks directed at other people without having any consideration to their feelings. Some of the comments on social networks are very repulsive. Lets act responsibly.

  14. mmwangi

    Erik, the language in the Act is unduly broad and quite vague. What is a “telecommunications system” anyway? This is not properly defined anywhere in the Act. My guess is that anything from a mobile phone to a nano-bot :) as long as it can be used in “collecting, storing, using or sending out information” falls broadly under a telecommunications system.

    Besides this glaring semantics, section 29 (a) of the act is vulnerable to frivolous abuse by anyone who harbours a scintilla of malice, a vendetta or personal grudge against you. What constitutes to a “grossly offensive, indecent, obscene or menacing” message is anyone’s guess and it is open to varied interpretations. For example, just merely indicating in a tweet, blog or text message that your boss is incompetent, or insensitive at your place of work may land you court.

    Section 29 (b) is equally problematic “sends a message that he knows to be false…” I thought a court not the individual decides on the verity/falsehood of a message. This clause already implicates you before even a trial!

    The most nefarious aspect of Section 29 is that it by its mere language it explicitly legitimises censorship. In time either a government cyber squad, or individuals/community inclined to certain goals, agendas or points of view will prowl cyberspace especially social media sites making witch hunts for individuals or persons who they deem have posted “grossly offensive, indecent, obscene or menacing” messages.

    Alai’s case could the first of its kind to test the degree to which censorship applies online. Whether Alai is vindicated or not we should beware of the outcome of this saga if it gets to court. For it could lead to a very slippery slope.

    1. HASH

      James, I do moderate comments, mostly to catch spam. All posts with a link are automatically held for me to review. In your specific case I’m moderating your last comment due to you linking to Robert Alai’s blog. I won’t give him any Google juice by having a link on my site to anything on his.

  15. Indra de Lanerolle

    Eric, great points but I would go further. Yes freedom of expression comes with responsibility but we should make a distinction between civil law (libel and defamation) and criminal law which in many countries governs matters like hate speech.
    I am shocked at the language you quote from section 29: “..sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person” Every day there must be many kenyans on social networks (many of them children I imagine) breaking this law. Societies have other means of governing ‘bad’ speech like this – criminal sanction is inapprioriate. Kenya is, I think, a signatory to the Windhoek Declaration (http://www.un.org/en/events/pressfreedomday/windhoek.shtml) – see clauses 5 and 9 especially.

    1. HASH

      @Indra, you’re absolutely correct on the need to differentiate between civil and criminal law. It’s just this type of fuzziness in Kenya’s Information and Communications Act that allows for ambiguity. Ambiguity in law is much easier for government to abuse than citizens, so it creates an even larger power imbalance in the relationship between them.

  16. Jameni

    Surely there is enough room for all types in the blogosphere. While Alai may be overly aggressive, should we condemn him for basically finding a niche for his hustle? Afterall, there is enough room for Oprah Winfrey, Jeffrey Springer, Maury and Dr. Phil.

  17. whynnot

    when it comes to speech, it’s better to err on the side of freedom. behavior can never be and should not be legislated

  18. GEORGE

    Robert cooked his goose, let him eat it. I am not a supporter of A.M who Robert accused of facilitating murder in a very casual way, but if you put yourself in Alfred’s position, this was very not fair and Robert deserves everything he gets.

  19. GEORGE

    Robert cooked his goose, let him eat it. I am not a supporter of A.M who Robert accused of facilitating murder in a very casual way, but if you put yourself in Alfred’s position, this was not fair and Robert deserves everything he gets.

  20. Naomi Mutua

    I am a supporter of freedom of speech. I am also a supporter of the fact that citizens should be law abiding.
    I don’ t speak legalese, so I cannot substantiate the claim that he ‘broke a law’. But what I do stand by is that we should ALWAYS be ready to defend our utterances in public, and in private. What Alai posted was slanderous, and at the very least, he should be sued for libel. Unless, of course, he can substantiate his claims. If he has proof, why not table it, instead of shouting from the rooftops.
    Prophets are hated in their own land… but then again, real prophets always had the Big Guy on their side.
    Alai needs to stop being a troll…he should harness the power he has in social media and use it for good. I don’t feel sorry for him being arrested.

    - Opinions expressed here are my own -

  21. MANIONFIRE

    “I disapprove of what you say, but I will defend to the death your right to say it.” – Voltaire

  22. John Karanja

    Having been at the receiving end of some of Alai’s nastiest tirades I really didn’t take keen interest in the circumstances of his arrest assuming that he must have rubbed the wrong person the wrong way.

    However the issues you have raised in as far as the Kenya Informations and Communications Act 2009 is concerned seemed to have been nulled by the new constitution which takes a libertarian outlook in as far as individual rights and freedoms are concerned. I am sure its just a matter of time before a locus standi class action suit renders that law invalid due to its unconstitutional nature. Here is to hoping that happens soon.

    Nevertheless ones personal freedom should end where freedom of others begins.

  23. Isaa

    While Alai need not use such uncouth and abusive words in order to stress his point, someone by the name Idd Salim, a pervert in all ways, thinks that our following him on twitter makes us idlers and lovers of beef – losers”. So now he’s so interested in knowing how many followers someone has on twitter? In any way, his mere labelling us as idlers does not hold since if blogging makes someone an idler then he’s the chief idler in town.

  24. AGGREY MBOYA

    I find it unbelievable when Kenyans of humble backgrounds are never allowed to criticize the rich,bastards and illitrate who have climbed the ladder of success over night. They commit atrocities then use the police, court and media to threaten Kenyans who readily bow down to their threats given their tribal inclination. I know you’re poor and desperate when you’re paid to control what the #KOT tweet about our failed institutions. People like R.Alai and Itumbi are not the first to suffer lack of freedom of speech, others have gone 6 feet under to free us from this ‘man eater’ society. I pray to God to open your eyes and brains to see that you need your poor KENYAN friends than those corrupt big belly bosses and Americans.

  25. Steve.K

    i have always stood by freedom in the press and not freedom of the press, the latter serves the interest of proprietors and media monarchs who at the end of the day control “their” media houses ; many are privately owned, so their agenda is never necessarily the agenda of Kenyan’s neither do they speak for Kenyan’s most of the time, and the few times they do, they have their own interest to drive. This leaves new media, the only place where freedom in the “press” exists, but all states in the world are seeking to curtail online media freedom, yes! including the kingpin of democracy the good ol’ US of A… they have put billions into monitoring and will put billions into ensuring there are legal loopholes to try and take down the Assanges and Alai’s… but then again if you are going to be a rebel, find a worthy cause not libeling like a psycho and expecting sympathy through online freedom discourse, what Alai did was wrong even from the devils perspective…you don’t abuse one’s mother on twitter … so if we are going to find a case study for online censorship then we have to look further than Alai … that said we still have an obligation to defend his right to abuse us.

  26. ja runda

    Like someone correctly puts it Alai cooked his goose. It was just a matter of time
    before someone came down hard on him and about time too.
    For one, there is absolutely no defence in slandering and using another source
    as excuse. You cannot insult me or call me “corrupt” and on being made questionable
    you say i am coz.so en so said so. You cannot go around maligning, abusing and insulting
    people and still think you can get away with it. Though i would wish no man imprisonment
    or any form of restriction, one thing that is obvious Alai just does not know when to stop.

  27. Phil

    Erik’s article should be a concern to many of us in the area of political freedoms. Beyond the distractions of individual ego and personality that is Alai, there are real issues of concern. Since social media and mobile engagements are akeen to culture of communication in our times, expressions of dissent or questioning power cannot be left to an omnibus act that lacks specificity or context. What can be construed as defamation, could also be a statement holding power to account. I wonder however, the consistency of this retrogressive act of 2008 with the new Constitution, promulgated in August 2010. There maybe opportunities to challenge the law in a Constitutional Court, perhaps not in this matter since the character in question leaves much to be desired when it comes to credibility. The name calling and abuse of the author of the blog, again, not helpful. Censorship of such channels is a serious issue and we need serious people who can stand up address them. I know Erik has.

  28. Juicy Googler

    Hi Erik, check out setting rel=”no-follow” attribute on your links if you’re having to moderate comments for spam links, and you’re worried about sharing your google juice.

  29. MMK

    There are numerous cases in court right now on people charged with sending offensive SMSs. It should also apply to social media.

  30. SimonB

    While I understand that Robert can sometimes speak harshly about others on twitter, I also know that Robert is an awesome guy and would not do this without cause. From my personal experience, I can say that Robert is possibly the best ambassador Kenya has online .

    When I visited Kenya for the first time back in 2010, Robert was the only Kenyan tweep to reach out to me and provide assistance sorting a few things that I needed while on location in Kenya to make my stay comfortable. He never asked anything in return and I can truly say, Robert went far out of his way to help. I will never forget that. Thank you Robert!

    When Robert hits out at others online there must be good reason for this.

    When someone makes a death threat against you, then I’d say thats good enough reason, I don’t see why slamming someone who threatened you online should be wrong. I have personally had a death threat and I can say that this rattles most people to the bone. If I was in Roberts shoes I would have hit back even harder online. Especially considering that the threat comes from a government official. Government officials have huge klout and can quickly have people arrested and assaulted. All we as private people have is twitter and other social media channels and I think Robert defended himself by posting to twitter. I would have done the same thing although I would have uploaded the audio recording of the threat ;-) hint hint Robert.

    Lets not forget that Robert has received a death threat once before: http://walala-hoi.blogspot.com/2011/06/robert-alai-man-gay-man-who-took-photos.html The death threat is still online, and a few days after that death threat Robert was very seriously assaulted http://twitpic.com/photos/RobertAlai

    Are those responsible behind bars? Shame on you Kenya!

    If Robert is assaulted again, thanks to his tweets, we will all know who instigated it and as a community can take action against this person.

    @whiteafrican – Where do you get the info that Nokia, Google, iHub and Skunkworks have banned & blacklisted Robert?

  31. Rose Kahendi

    I think the discussion of libel and what that constitutes is worth having, as is that about this arrest setting a precedent.

    I hope that, in having this discussion, we don’t forget the original story that started all of this: the one about Mrs. Karen Kandie, the Kenyan woman who was assaulted and is now having a hard time getting justice.

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  33. Lt,. David Omondi

    If you look at the said person’s tweets and blogs, you will find a collection of insults aimed at anyone and everyone(yourself included). As much as we would all like to defend freedom of speech, it would be unreasonable to allow anyone who is prone to insulting other people to do so as though there are no laws in Kenya! This doesn’t even happen in our ‘offline’ lives! NO ONE has been prosecuted for expressing their opinion in a respectful manner that does not undermine the person(s) he/she has grievances against! I would urge all of you to acknowledge the immense power of social media on our nation and to think carefully before we post ‘opinions’ therein.

  34. Ali Hussein

    Eric

    Interesting piece and food for thought. My take is that if we set aside for a moment all these sections of the law that you have mentioned and ask ourselves how far the law has been stretched to arrest Robert?

    Without the Communications Act has he run afoul of any other laws? Would he behave the same way offline that he has online? You raised the issue of how he uses this behavior for monetary gain. That’s his business model. Do lets set aside the ‘offending’ laws for a moment and ask ourselves if he behaved in that manner say in a party. Some people abused may turn the other cheek and walk away. Some may turn back and hit him. It just so happens that Alfred Mutua decided to fight back. Now we can argue the merits and demerits of what has happened to Robert. But I’m sure we can’t argue about the rights of the offended.

    The law is an Ass.. So my question is this – Should you deliberately time and again goad the ass to kick you? We know that the Ass has a nasty kick. What are the odds that you will finally be kicked? Hard?

  35. Al Kags

    I shall respond to this in some level of detail today because I have been reflecting on this. However, issues with the law not withstanding, I think the law does not necessarily result in censorship. One must be held accountable for views that one holds forth publicly. The officers of the law did misrepresent themselves as regards the law by quoting all those sections, but that does deliver itself in truth when we study the law as you have – we then know which law he has contravened. What he said of Alfred Mutua (even whereas there are many of us who have a low opinion of Alfred), did contravene – not just this law but also rules of natural justice. He shall defend himself in a court of law.

  36. d

    I don’t support the government on raiding on media houses, but comeone men , I think Alai was a bit over himself, the way he said it was just wrong, If he could have only implied that Mr. Alfred had done that, then Atleast I would understood, but he acused him as a fact, Even if it were you bieng acused and you beleive its false,you would report to the police and you would want them to do something about it

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