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Internet Governance in Kenya
29. July 2018 at 22:34
The term ‘Internet governance’ is used in international discourse to describe a wide variety of issues, which includes: Internet-specific technical issues, which are largely determined by Internet professionals working within Internet specialist fora (such as, at global level, ICANN, the IETF and W3C).
Issues concerned with the relationship between the Internet and its underpinning infrastructure, which are largely determined by businesses and regulatory agencies within the telecommunications sector; and issues of wider public policy which are substantially impacted by the Internet but which are primarily governed by national and local agencies that are explicitly concerned with those other domains (such as education ministries or the police) and which see themselves as lying outside the communications sector.

In practice, most of the issues with which Internet governance is concerned have both technical and public policy dimensions, and involve both decision-makers who work primarily within the Internet environment and those who are primarily concerned with public policy domains. Some of the most challenging issues of Internet governance are those in which the Internet changes the boundaries of what it is possible for stakeholders to do, or where the global nature of the Internet enables individuals and organisations to bypass established national laws.

Information Communication and Technology (ICT) Status
Standing at 242, Kenya has the highest number of Internet Service Providers. According to a study conducted by CIPESA (an organisation promoting effective and inclusive ICT policy in Africa), Kenya also has the highest level of penetration at 89%.

State Co-Ownership of network operators
It is important to note that some governments in many countries have invested significantly in the telecoms sector, such as in national fibre optic cables, satellite stations, mobile networks and fixed telephone lines. States also own and control the radio frequencies for mobile telephony, radio and TV broadcasting, and license the frequencies to operators. Kenya is not any different. The Kenyan government currently owns a 30% stake in Telkom Kenya and a 35% stake in Safaricom Limited, the country’s largest mobile operator. Because of government involvement state control in the regulation of the telecommunication sector remains quite strong with the Ministry of ICT overseeing the national regulators and other state-owned enterprises, including interests in public traded companies.

ICT legislation
While Kenya has enacted quite a number of laws governing ICT such as Kenya Information and Communications Act; Computer Misuse and Cybercrime Act 2018; Access to Information Act; Guidelines for the Prevention of Dissemination of Undesirable Bulk Political SMS and social media content via Electronic Communications Networks (Guidelines for Political Messaging); National Cohesion and Integration Act; Defamation Act; Copyright Act; Penal Code; Sexual Offences Act; Children Act; Prevention of Terrorism Act; and the National Intelligence Service Act.

The Constitution of Kenya 2010 outlines “advocacy of hatred or hate speech” as part of the limitations on freedom of expression. Further, sections 13 and 62 of Kenya’s National Cohesion and Integration Act, 2008 define and prohibit hate speech and this extends to hate speech online. It is important to note that the Kenya Films and Classification Board (KFCB), Communications Authority of Kenya (CAK) and National Cohesion and Integration Commission (NCIC) have taken an active role in enforcement of these laws by for example banning the screening of films which they consider pornographic and whose content is immoral and explicit by Kenyan standards.

It is important to note that although enacted into law, the operationalisation of the Computer Misuse and Cybercrime Act 2018 and several provisions remains suspended following a conservatory order (Order) obtained by the Bloggers Association of Kenya (BAKE) on 29 May 2018 from the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi. The Order was issued By High Court Judge Chacha Mwita pursuant to an application and petition filed by BAKE which challenged the law for contravening constitutional provisions on freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing. The entire Act and selected provisions remain suspended until the Petition is heard.

false/fake News
The spread of false information, also commonly referred to as "fake news", has sparked governments’ interest to regulate social media. While preventing the spread of fake news may be a legitimate concern by both state and non-state actors, in repressive states the enforcement of such provisions can be used to curtail freedom expression. During the 2017 electioneering period, fake news stories in form of manipulated videos disguised as genuine reports by CNN and BBC, were widely shared on social media platforms. As with hate speech, the government has been treating the spread of false news as incitement or offensive communication but it is yet to come up with cogent mechanisms to tackle this issue effectively.

As a result of the broad nature of the legislation, intermediaries can now be held legally responsible for content carried on or through their networks, which amounts to libel under the Defamation Act; copyright infringement under the Copyright Act; infringement of privacy, child pornography under the Sexual Offences Act, 2006; hate speech under the National Cohesion and Integration Act; prohibited publication or inciting material under the Penal Code. Under the Kenya Information and Communications Act, they may also be liable for intercepting messages, disclosing the content of messages, statements or accounts specifying the telecommunication services provided. Under the 2017 Guidelines for the Prevention of Dissemination of Undesirable Bulk Political SMS and social media content via Electronic Communications Networks, intermediaries can be held liable for spreading falsehoods, hate speech and insults. However, no penalties are prescribed in these guidelines.

Cite This Article As: Maulline Gragau. "Internet Governance in Kenya." International Youth Journal, 29. July 2018.

Link To Article: https://youth-journal.org/internet-governance-in-kenya

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