The Kenyan government is waging a war against online hate mongers with what would appear to be a zero-tolerance policy. In an unprecedented move two chat group administrators have been arrested. They were charged with sharing hate messages on WhatsApp that threatened national security and face an additional charge of spreading alarming propaganda on social media.
Like many other countries, Kenya has charged people with hate speech before. Recently in the UK, a Facebook user was charged with spreading hate messages against Muslims. Rwanda has also successfully charged various people with hate speech.
The difference in this particular case is that WhatsApp administrators have been charged. However, this is not the first time a chat group administrator has been prosecuted for hate speech. In a similar case in India, the government arrested WhatsApp administrators for offensive posts about the prime minister.
As Kenya geared up for its general election in August it was already grappling with hate speech. This reached a crescendo in the post-election period as supporters of the two opposing political groupings - the ruling Jubilee party and The National Super Alliance - engaged in digital warfare.
Fearful of a rerun of previous post election violence, police were well prepared this time.
Under Kenyan law hate speech is a criminal offence that carries a five-year jail term and a million shilling fine. One of the suspects allegedly shared a hate message that threatened to slaughter members of a certain community.
The arrests have proved controversial on two grounds.
The second is that the WhatsApp users felt safe because of the anonymity provided by the platform. Moreover, the Kenyan authorities have shown reluctance to prosecute hate speech cases. Earlier in the year, politicians accused of hate speech were released due to lack of evidence and the absence of asupporting legal framework.
But I believe there are grounds for a successful prosecution under Kenyan law.
What the law says
On the issue of freedom of expression, Kenya's constitution enshrines the right to freedom of speech. But this doesn't include allowing propaganda for war, incitement to violence, hate speech, advocacy of hatred, discrimination, ethnic incitement, vilification of others, and incitement to cause harm. This is in line with international law which protects freedom of expression, but has limitations.
During the election period thousands of Kenyans used social media to express their opinions. Many of the conversations pitted members of different ethnic communities against each other. This type of hostile communication was a spillover from the 2013 general election period when online hate speech first reared its ugly head.
This year many Kenyans retreated to the privacy of their WhatsApp groups to speak freely about their political affiliations. Again, a good number of these conversations were inflammatory.
It's understandable that Kenyan authorities felt they needed to act. But what happens next is unclear given that the law hasn't caught up with the implications of people using various social media platforms to ventilate.
There have been a number of cases in which individuals have been charged with hate speech. And on their part, newspapers, radio stations and media enterprises can also be held criminally liable for publicising threatening, abusive or insulting material intended to stir up ethnic hatred.
The law applies to audio, visual and written hate messages, all of which are common on social media platforms. Therefore, it can be argued that Section 62 of the National Cohesion and Integration Act includes online hate speech. This would make it a crime for digital perpetrators - including those in WhatsApp groups - to spread hate through private messages.
The government has also published guidelines specifically aimed at preventing the dissemination of undesirable political text messages and social media content. According to the guidelines, WhatsApp group administrators are responsible for the content disseminated through their groups and therefore they are criminally liable for any harm that results.
I believe that these guidelines, when read together with Section 62, empower the police to arrest WhatsApp group administrators. This is because the guidelines create legal responsibilities and liabilities in the social media environment that can be applied to content service providers, including WhatsApp group administrators.
And the activities governed by the guidelines include social media use and networking, online publishing and discussion, media sharing, blogging, micro blogging, and document and data sharing. As such, even WhatsApp group members can be accused of spreading hate speech.
The impact of these rules has been that online group administrators and content creators such as bloggers must now actively monitor their members so that they are well aware of the information that is being shared on their platforms.
Therefore one will have to watch and see whether the charges will be successful or whether the Constitutional Court will be faced with a question of interpretation. The salient point of contention will be whether the WhatsApp guidelines violate the right to freedom of media and speech or if they are a necessary limitation, taking into account Kenyan's online environment and the people's propensity to post inflammatory or dangerous speech.
Mercy Muendo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.