Kenya: New Draft Guidelines on dissemination via Electronic Communications Networks should be scrapped

On 4 July 2017, ARTICLE 19 responded to the consultation organised by the Communications Authority of Kenya (CA), the national communications regulator, regarding the Draft Guidelines for the Prevention of Dissemination of Undesirable Bulk Political SMS and Social Media Content via Electronic Communications Networks. In our response, we presented our analysis of the compliance of the draft Guidelines with international standards on freedom of expression. We also shared that analysis with the National Cohesion and Integration Commission (NCIC) of Kenya.

We concluded that the Draft Guidelines published in June 2017 by the Kenyan Communications Authority are in breach of international standards on freedom of expression and freedom of the media, in particular:

  1. The CA asserts that the Draft Guidelines apply to “collaborative arrangements with other stakeholders such as bloggers, Social Media Services Providers among others.” In support of this, the CA cites its power to issue the Draft Guidelines under Section 23 and 25 of the Kenya Information and Communications Act (KICA), 1998 as amended. However, as ARTICLE 19 points out in our submission to the CA, the High Court in Geoffrey Andare v Attorney General & 2 others held that the KICA was not intended to regulate bloggers or individual Internet users. Therefore, ARTICLE 19 submits that the CA is acting outside the scope of its powers in issuing guidelines, which it purports to apply to bloggers and social media services providers. As such, ARTICLE 19 recommends that Part II of the guidelines be removed entirely as it is not within the mandate of the CA.
  2.  The Draft Guidelines attempt to ban speech that is: “repulsive or horrible nature”, “foul”, “degrading, intimidating, unforeseen negative reaction, offensive, abusive, insulting, misleading, confusing, obscene or profane language, spread rumours, mislead”. In ARTICLE 19’s view, this language is excessively vague and fails to comply with the legality requirement under international human rights law. As such, it should be removed entirely from the Draft Guidelines.
  3. ARTICLE 19 highlighted that the Draft Guidelines delegate prior restraint powers to Mobile Network Operators (MNOs), Mobile Virtual Network Operators (MVNOs) and the National Cohesion and Integration Commission (NCIC) of Kenya before publication of Bulk Political messages in breach of international standards on freedom of expression. In any event, ARTICLE 19 noted that these provisions do not provide an avenue for an oral hearing and right of appeal for the party whose content is restricted. ARTICLE 19 recommended that these provisions be removed in their entirety.
  4. ARTICLE 19 highlighted that Clause 7 of the Draft Guidelines required that Bulk and Premium rate Content to be communicated in English and Kiswahili languages only, which is discriminatory to local linguistic and cultural diversity. ARTICLE 19 highlighted that banning the use of vernacular language on social media contravenes the right to freedom of expression enshrined in Kenya’s constitution and international treaties, including the ICCPR, which grant every individual the right to seek, receive, and impart information in in any language and media.

ARTICLE 19 urges the Kenyan Government to withdraw the Draft Guidelines in their entirety. At a minimum, the Communications Authority ought to address the serious shortcomings identified in the analysis and ensure that the Guidelines, once enacted, are in full compliance with international standards of freedom of expression.