The Internet was first made available in Kenya in 1993, and the first commercial Internet-service provider (ISP) began operating in 1995 (Oslo, 2011). The use of Internet is relatively free in Kenya and access to technology continues to grow despite the lack of infrastructure. Freedom House 2011 report considers Kenya a harbinger in the area of Internet freedom in Africa. Having said that, there is no surprise that Kenya, after South Africa, enjoys the highest level of Internet freedom in Africa.
As reported in the 2008 Human Rights report, there have been no confirmed incidents of government or technical filtering systems that were employed to restrict access to Internet content in Kenya. In saying so, Kenyans are able to acquire whatever content they desire, as well as access a wide range of viewpoints on their topics of interests, etc.
As a response to a rise in incidents of cybercrime and cyber threats surfacing within the country, in 2009, the Communications Commission of Kenya notified telecom service providers of the need to install an Internet monitoring equipment – Network Early Warning System (NEWS). However, this is being viewed as a hinderance of free expression by citizens, and more generally a breach of Kenya’s Constitution, which guarantees: (1) Right to Privacy (Article 31) (2) Freedom of Expression (Article 33) (3) Right of Access to Information (Article 35) (4) Freedom of the Media (Article 35)
Robert Alai is a notorious blogger and/or cyber-activist known for his unflagging stream of informative and entertaining tweets on Twitter, and for making a mockery of the public officials in Nairobi. Alai often defames individuals for attention. His goal is to boost traffic and monetize his sites. Apart from running his own website, Techmtaa.com, Alai has a Twitter following of over 20,000. Hence, it is his Twitter presence that is felt most.
Alai was arrested on the 22nd of August 2012 by Kilimani police officers after publically libeling government spokesman, Alfred Mutua, for wanting to kill him the way he had human rights activists, Oscar King’ara and Paul Oulu, killed back in 2009. Alai pleaded not guilty in court and reports on his release on a cash bail of 100,000 Kenyan shillings were later circulated.
According to NairobiWire, the tweets that got him into trouble with the government spokesman are as follows:
· The foolish government spokesman called Alfred Mutua now threatens me and tells me that he will deal with me. #Justice4Karen #WomenLeadership
· Alfred Mutua and Police Commissioner Mathew Iteere need to act and arrest Allassane Ba ASAP.#Justice4Karen
· I have just told Alfred Mutua that one day he will leave that power he is misusing.#Justice4Karen
· 072124**** is Alfred Mutua’s number he is using to threaten me. FOOLISH PIG is drunk with power. #Justice4Karen
· Alfred Mutua ordered for the execution of G.P. Oulu and Oscar King’ara calling them Mungiki. He wants to do the same to me. #Justice4Karen
According to Nairobi CIB boss, Kamwende, Alai was said to have violated sections 26, 29 and 30 of the Kenyan Information and Communication Act. The following extract is an overview of Acts 26, 29 and 30 as studied by Erik Hersman.
Deleted, it doesn’t even exist in the law…
A person who by means of a licensed telecommunication
(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.
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.
Taking into account that Section 26 does not actually exist, not to mention the improbability of Section 30, Alai is most likely only guilty of Section 29 (b). As illustrated above, Alai who is notorious for his relentless rants, or defamation, on his Twitter site, having taken freedom of speech to a whole new level, is finally paying the price for his actions. Hersman adds that “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.” (Hersman, 2012)
On a side note, Alai is not new to legal problems as such. He was close to getting sued by another blogger, Dennis Itumbi, for associating him with some ICC documents that Dennis was later arrested for. Adding onto that, Alai was almost sued for distributing Miguna’s book titled “Peeling Back The Mask” on the Internet, free of charge to his twitter followers.