Regulating net: Tug of war between online freedoms and societal order

NIS nominee Noordin Haji when he appeared for the vetting process before the National Assembly Defence, Intelligent and Foreign Relations Committee at County Hall, Parliament on May 30th, 2023. [Boniface Okendo, Standard] With perceived growing public outrage largely fuelled by the rising cost of living and mostly driven online, recent remarks by senior government officials suggest an onslaught on social media, a move experts warn could spell doom for rights and democracy. President William Ruto and government officials have recently made statements that appear to propose the regulation of digital spaces. Over the last few months, an online army, previously chided as "keyboard warriors", has emerged as Ruto's biggest challenge. Disgruntled young social media users are increasingly getting under the government's skin by leading protests on a never-before-seen scale online. During the June and July revolt, young Kenyans planned to force the Head of State out of office, either by pushing him to resign or invading State House-a move Deputy President Kithure Kindiki would later term an "attempted coup". In his New Year address to the nation from Kisii State Lodge, President William Ruto warned that the country's moral fabric was at risk if the manipulation of digital spaces, particularly social media, continued. During his vetting, Cabinet Secretary for Information, Communication and Technology, and Digital Economy, William Kabogo, made a curious statement. "Our regulator should engage with these platform owners to explore how they can be regulated. I intend to meet with them on my first or second day in office to establish a clear strategy for addressing this issue," he said. Two weeks after his vetting, approval by the National Assembly, and swearing-in at State House, Kabogo reiterated his stance. In January, Interior Cabinet Secretary Kipchumba Murkomen attended a prayer service for police officers at the National Police College in Embakasi, where he promised to restore order on social media platforms by targeting individuals who misuse these spaces to demean public leaders and spread harmful content. "Our cybercrime law is very clear. We will take action. There is a need to maintain law and order online," he stated. Besides Ruto, who believes last year's protests were mainly spurred by "misinformation", others who have spoken on the subject include National Intelligence Service (NIS) Director-General Noordin Haji, Interior Cabinet Secretary Kipchumba Murkomen and his Principal Secretary, Raymond Omollo, as well as Attorney-General Dorcas Oduor. Last week, Haji, who denied that the government would want to muzzle free speech, gave the strongest hint that a plan to regulate social media was in the offing. He said that while social media had spurred advocacy and mobilisation for civil action, there was a "worrying emergence of coordinated decisions or fostering misguided perceptions of their governments". "Although free speech is vital for our democratic freedoms, it is essential to find a delicate balance between national security and the right to free expression. It would therefore be prudent for us to deliberate on the potential impact of these emerging threats and devise pathways to mitigate these challenges," Haji said when he hosted some 52 spy chiefs during the Mashariki Cooperation Conference in Naivasha. During a public lecture by Haji last month, Oduor also made a similar point. "...we are witnesses to the effects of technological advancement - which has benefits for society but which can also be weaponised to create doubts about the government or to mobilise against the government," she stated. Central Organisation of Trade Unions Secretary General Francis Atwoli has not been left behind either. Last weekend he stated: "It's time to stop the propaganda. You must love your country. If you are not patriotic, even investors will leave. We will be compelled to ask the government to regulate social media. The content on TikTok is shocking. Social media must be regulated," Atwoli warned. Their remarks follow similar ones made by Interior Cabinet Secretary Kipchumba Murkomen and Principal Secretary Raymond Omollo, who asked social media companies to establish physical addresses in Kenya to enhance the monitoring of social media users. At the time, social media was flooded with Artificial Intelligence-generated images of the President and other politicians in coffins, which Ruto then branded "indiscipline." Murkomen promised a crackdown on social media users sharing such images, some of whom - Billy Mwangi, Peter Muteti, Bernard Kavuli, Rony Kiplangat (Kibet Bull) and Steve Mbisi - have suffered abduction. Governance analyst Dismas Mokua argues that Kenya needs a Code of Practice for self-regulation, grounded in the 2010 Constitution, to prevent authorities from infringing on fundamental freedoms. "The Code of Practice will outline principles and commitments for online platforms and the advertising sector to combat the spread of misinformation and disinformation online," Mokua explained. As of January 2024, there were 22.71 million internet users in Kenya, representing an internet penetration rate of 40.8 per cent of the total population, according to data from DataReportal. Besides the President, Chief Justice Martha Koome has lamented about online attacks against her, citing attempts to remove her and other Supreme Court judges that have mostly been driven on social media. "I always confess that I'm a victim of cyberbullying, or I'll say technologically facilitated gender-based violence. But I know the intentions; it's a business model, I don't know what it meant to achieve, maybe to scare me, to distract me, to defame me and hound me out of office but they can try something else," she said during last year's Human Rights Summit. However, the State functionaries complaining about the misuse of social media have often been guilty of the same. For instance, bloggers allied to the government have often sponsored hashtags on X aimed at undermining press freedom and intimidating journalists. The Standard has constantly fallen victim to such, owing to its bold reporting. Social media has, arguably, been more of a source for good in Kenya's context. Young netizens are leveraging the digital space to amplify dissent, redefine activism, and mobilise for noble causes. Ahead of last year's protests, civic education was at its peak as Kenyans shared insights on what the unpopular Finance Bill entailed, translating it into virtually all languages. Later, as the police brutalised protesters, doctors mobilised online to offer free treatment to the injured. Social media has also been used by whistle-blowers to expose suspect dealings. Nelson Amenya, a social media activist, helped uncover secretive negotiations involving the leasing of Jomo Kenyatta International Airport to an Indian conglomerate, Adani Group, sparking public uproar. Ruto eventually cancelled the suspect deal and another on energy transmission involving the same firm. Amenya read an attempt at repression in the government's latest plan to regulate social media, saying the State was showing hostility towards the electorate. "The government should be creating an enabling environment for open dialogue and honest feedback. Resorting to repression signals a failure to lead with accountability and transparency," said Amenya. "I understand that the government is under pressure-both domestically and internationally-due to rising public dissent. But silencing citizens is not the answer. If the government genuinely wants to restore trust, it should invite the public to the table, listen with humility, and commit to making meaningful changes," he added. This will not be the first time that the government has tried to regulate the digital space. In May 2018, former President Uhuru Kenyatta signed a cybercrime law that outlawed the abuse of people on social media, which critics faulted as an attempt to stifle freedom of expression. Busia Senator Okiya Omtatah said the government should come up with a law and not "regulate (social media) on whims." "Let them bring a law to Parliament, and we will look at it and determine whether the regulations are justified. You cannot bring regulations without a law," said Omtatah, who argued that the State was "playing politics" by making public declarations. "They want to intimidate social media users. Ruto wants to conduct a coup on the civilian nature of the Kenyan Constitution and use security organisations to govern the country," he added. Dennis Onyango, a social media expert, agrees that the current push for regulation could lead to the stifling of civil liberties, describing it as "a cowardly move that aims to shelter the government from criticism." "Social media gives us a voice as a nation. It is a tool that we use to express our honest opinions, not just about our government but about life in general," said Onyango. However, he argued that social media could be "a force for evil", hence the need for responsible usage, but insisted that gagging the masses was "not a solution."

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