More facing charges for online posts

The last two weeks have seen increased cases of people, both journalists and other online users, being arrested and charged for the manner and contents they post online. This has followed complaints made to the Criminal Investigations Department (CID) by individuals while others have followed decrees by the Minister for Interior.

In almost all the cases involving online content deemed to be in conflict with the law; many times the State has used Section 29 of the Kenya Amendment Act 2009 that provides for charges on misusing online platforms to charge people, including Nakuru-based journalist Elijah Kinyanjui. Eddy Reuben was charged in relation to posting photos of the alleged bodies of KDF soldiers killed in Somalia under the outlawed section 66(1), which under the Security Amendment Act had provided for charges on publishing of disturbing photos/content. When Kinyajui was charged, we had argued that such laws while extreme, would make the work of journalists difficult. Furthermore, appropriate sanctions are already provided for under the code of ethics for the practice of journalism, in Schedule Two of the Media Council Act 2013.

While Reuben’s case is unique in the sense that he has been charged under an outlawed section of the law, journalists are required to be responsible; the code requires that journalists shall not publish obscene or vulgar materials, publish photographs showing mutilated bodies, bloody incidence and abhorrent scenes or show such photos without warning viewers or readers. Note that while some sections of the Security Amendment Act were declared unconstitutional by the courts, the code of ethics contains similar requirements which we need to familiarise ourselves with. The code of ethics applies to journalists — both online and offline. Such issues as tweeting, retweeting, circulating content and or positing content irresponsibly will leave you exposed. A number of media houses have development social media policies for their staff and journalists have a responsibility to familiarise themselves with these policies. This is the essence of self–regulation.

In 2014 Parliament passed the Security Laws (Amendments) Act 2014 which were then challenged and the High Court declared some sections unconstitutional, including Section 12 of the Security Laws (Amendment) Act amending the Penal Code by introducing Section 66A (1) which provided that; a person who publishes, broadcasts or causes to be published or distributed, through print, digital or electronic means, insulting, threatening, or inciting material or images of dead or injured persons which are likely to cause fear and alarm to the general public or disturb public peace commits an offence and is liable, upon conviction, to a fine not exceeding Sh5 million or imprisonment for a term not exceeding three years or both. This section was criticised by the media because among others things, it duplicated the code of ethics for journalists and was deemed draconian thus was declared unconstitutional and a violation of Articles 33 (Freedom of Expression) and 34(Freedom of the Media) of Constitution. The court observed that a properly functioning self-regulated media mechanism such as is contemplated under the Media Council of Kenya Act, 2013 ought to demand strict adherence to clear guidelines on how the media reports on terrorism.