In recent years, deliberate disruption of access to the Internet by governments to curb a wide array of perceived threats or social ills has been on the rise. According to Access Now #KeepItOn Report, in 2022 and 2023, 39 countries, among them India, Iran, Palestine, Uganda, Ethiopia and Pakistan, experienced what can be described as internet shutdowns.
An internet shutdown can take many forms, including total blockage of the internet in a certain country or location, the blocking of a platform or interference to slow down internet access in certain areas. The main reasons for these interruptions and shutdowns are usually controlling civil unrest, stemming the flow of misinformation, or preventing cheating during national examinations.
In this digital age, being able to connect and use the Internet has become a day-to-day necessity that allows us to access government services, access the news, do research, connect with loved ones, meet new people and date, advertise our goods, purchase things, transfer money, get a taxi, and express ourselves about any issue. In 2016, the United Nations declared internet access a basic human right.
In terms of the public’s ability to access and share information, especially about politics, governance, environmental issues and human rights, the Internet has fostered a paradigm shift that has seen governments and legacy media such as radio, print, and television lose out in terms of their ability to control what people consume and say.
Kenya has slowly been joining the fray of countries that interfere with internet access. Last year and two weeks ago, digital rights civil society organisations documented the interference of access to the Telegram, a social media instant messaging service, during the national examinations period.
A letter alleged to be from the Communications Authority of Kenya to telecommunications companies leaked online soon after seemingly confirmed the allegations.
Another suspected internet shutdown was reported at the height of the June-July Gen Z protests. Beginning around 4:30pm on June 25, extensive internet outages affected users in Kenya, Uganda, and Burundi during the demonstrations.
Major telecommunications providers attributed the disruption to an undersea cable issue. Still, organisations like Internet Outage and Detection and Analysis and NetBlocks suggested deliberate interference despite a statement by Safaricom that an undersea fibre-optic cable had been damaged.
Per international law and many constitutions, including ours, freedom of expression is absolute but may be limited in certain circumstances to protect public order, national security, morals, or health. This does not include “making the government’s job easier,” “maintaining respect for the regime or leaders,” or “stopping lies and irresponsible views.”
Our Constitution in Article 33 (2) states that free speech does not extend to propaganda for war, incitement to violence, advocacy for hatred, hate speech and vilification of others due to their identity.
Still, on limitation of rights, Article 24 of the Constitution sets out a three-part test which requires limitations to be prescribed by law, to pursue a legitimate aim such as preventing violence and be necessary and proportionate in a democratic society. They can be summed up as legality, legitimacy and proportionality.
When we administer the test on internet shutdowns, depending on the reason, it always falls short concerning the necessity and proportionality as well as the part prescribed by law. Notably, we currently do not have policy guidelines and laws on how such a decision is carried out.
The government may arguably be concerned about national security, but does curbing examination cheating meet the test? Is it 'proportionate' to shut down an entire platform such as Telegram, which is used by millions of people beyond students to curb cheating? Does it solve the cheating problem and hold the people who leak papers accountable? Can you imagine banning WhatsApp or Twitter because some criminals use it?
