Last week, the Communications Authority of Kenya published draft regulations on the use of social media for political messaging in collaboration with the National Cohesion and Integration Commission (NCIC).
The regulations have two components – one on bulk SMS and the other specifically for social media use within the context of political messaging.
The regulations on bulk SMS are actually the second edition. The first edition was gazetted as we went to the polls in 2013 in a clear effort to avoid a repeat of the post-election violence we witnessed after the 2007 general elections.
Bulk SMS involves content service providers (CSP) who buy airtime in bulk from mobile operators in order to resell it to clients, such as political parties, which may wish to send out thousands of SMS or audio messages to their supporters.
Such mass messages may pose a threat to public order, depending on their intent and construction. The proposed regulations are therefore an attempt to curb or contain such political messages before they cause harm to public order. Section 5.3 says:
Political Messages shall not contain offensive, abusive, insulting, misleading, confusing, obscene or profane language.
And section 5.4 emphasises this further as:
Political Messages shall not contain inciting, threatening or discriminatory language that may, or is intended to, expose an individual or group of individuals to violence, hatred, hostility, discrimination or ridicule on the basis of ethnicity, tribe, race, colour, religion, gender, disability or otherwise
Essentially, CPS and mobile operators are obligated to vet political messages to ensure they meet the regulatory expectations above or they would be held liable by both commissions for failing to curb purportedly dangerous messages.
There is nothing very new in the revised bulk SMS regulation except for section 6.2, which now restricts the time for sending out political bulk messages to between 8:00am and 6pm. In addition, section 7.0 also restricts the languages that can be used to only English or Kiswahili.
The time and language restrictions are likely to be contentious, since they betray the inability of our security agencies to take care of us at night as well their inability to decipher all or some of the 42 languages spoken in Kenya.
Either way, the two commissions seem to realise that most political messaging is happening outside the control of mobile operators – through social media sites such as Facebook, WhatsApp, Telegram and Twitter, and hence the addition of a whole page dedicated to controlling social media messaging.
INITIATING THE HATRED
Whereas the clauses may be well-intentioned, there are issues of conflict with constitutional provisions for freedom of expression, as well as the capacity to enforce the regulations. For example, section 2.2 under social media regulations says:
All comments shall be polite, truthful and respectful.
So who will judge what is polite, truthful or respectful? Last time I checked, politicians, particularly in Kenya, are not particularly polite, truthful or respectful and nothing has been done to them.
So how come we are now more interested in those blogging about it, but not those initiating the hatred? Section 2.3 makes it worse by saying:
It shall be the responsibility of the Administrator of the social media platform to moderate and control the content and discussions generated on their platform
Now, how on earth is the administrator supposed to do this? Some social media platforms contain thousands of users and it is just not feasible to control what the users say – unless you censor every post before it pops up on the social media platform.
This basically makes you a State gatekeeper without the benefit of the huge budgets enjoyed by the many commissions and state agencies charged with the duty of ensuring a cohesive society.
In any case, even if the administrators had the time, money and resources to police the blogosphere, they would realise most sites support encrypted and anonymous posts that make it virtually impossible to identify culprits.
In other cases, culprits have no problem being identified since they live comfortably abroad, where censorship laws are less oppressive and more in favour of freedom of expression.
For sure, the Kenyan blogosphere is full of hate and tribal venom that need to be toned down. But we must be careful not to adopt regulations that would set a precedent that may take us down the memory lane of the Nyayo-era oppressive regime.
A better approach to hate speech and incitement online should be reviewed in light of Article 19’s practical guide to dealing with such cases using their six-part test.
Remember, these regulations, if adopted, will apply beyond the election period, when the threat to public order would no longer apply. What chilling effect would they have on freedom of expression and association?
Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @jwalu