Last week, Kenya ICT Action Network (KICTAnet) hosted the first session of the Kenya School of Internet Governance.
Among the many thought-provoking presentations by various facilitators, one clearly stood out.
On the last day, a human rights lawyer named Henry Maina made a presentation that challenged the widely held perception that Kenya was indeed enjoying unlimited Internet freedom.
Maina, a director at the human rights group Article 19, was the brain behind the lawsuit that eventually led the High Court to declare Section 29 of the Kenya Information Communication Act unconstitutional.
Section 29 was titled "improper use of a telecommunication system" and said in part that one who:
"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".
This section had been used repeatedly by government agencies to clamp down on critics, particularly on social media and other Internet platforms. Whereas the clampdown has declined significantly following the court ruling, Maina feels that Kenyans are not yet out of the woods.
He argued that Kenya, having a more sophisticated leadership, can encroach on Internet freedoms in more subtle ways than many other African countries can.
In other words, Kenyan authorities are unlikely to orchestrate a countrywide Internet shutdown like what typically happens in Uganda or Zimbabwe.
However, they can achieve the same effect by shutting down selected zones of the country as and when they deem it necessary.
Mobile-based technologies are inherently geo-location based. It is therefore easy to propagate congestion or otherwise take down GSM base-stations in one or two targeted counties without affecting the rest.
This could be done to contain perceived sources of "unrest" — be they of political, social or economic nature. Citizens within those zones would be without access for as long as it is considered necessary for government authorities to get on top of a situation.
Another interesting revelation from Maina was that the defiant WikiLeaks recently reported that the Kenya government has joined other governments in acquiring sophisticated spying software known as FinFisher spyware.
The WikiLeaks report showed that the spy software is designed to attack, infect and monitor targeted user devices such as desktop computers, laptops and mobile phones, among others.
The providers of the software indicate that once the spyware has infected a victim’s devices, authorities can easily access the private information that includes but is not limited to your emails, Skype calls, and screenshots of Facebook, WhatsApp and others.
One may rightly argue that WikiLeaks is not always right. However, in the wake of the recent and misplaced utterances by Health Principal Secretary Nicholas Muraguri, that the government can access what journalists are writing about before they publish it, one is free to choose whom to believe between WikiLeaks, the PS, Maina and all three.
Furthermore, another source, Citizen Labs, lists Kenya among countries that have acquired spy software, perhaps motivated by the need to deal with increased terror threats.
By all means, our government needs to, and must, acquire systems that can protect us. However, we need sufficient checks and balances to ensure that such systems are not abused to intimidate citizens.
Continued delays in enacting the Data Protection Act while we operate under enhanced security legislation leaves one wondering whether the delay is deliberate, in order to give authorities a free rein on privacy matters.
Are our Internet freedoms as wide as we have always assumed? Make your own conclusions.
Mr Walubengo is a lecturer at the Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @jwalu