This Mashujaa Day 2021, I celebrate one active Kenyan in defence of freedom of speech. Last year, I called him and told him, ‘wewe ni shujaa’, this year, I write for posterity.
Prolific blogger Cyprian Andama Nyakundi has scored a lot of points for the freedom of speech in Kenya.
Many people write online because as the age of darkness, occasioned by such laws as the Kenya Information and Communication Act (KICA), were creeping in, Nyakundi dealt a deadly blow to it.
Section 84D of KICA was struck out by Justice Wilfrida Okwany in petition filed by Cyprian Nyakundi and his lawyer Dudley Ochiel (Petition No. 214 of 2018).
The section (84D) of the law criminalized sharing vulgar information or obscene information in electronic form.
It reads; “Any person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a fine not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both”.
After the court case, Cyprian and any other Kenyan cannot be charged in a court of law for content they publish on electronic platforms under the specific section of the KICA Act.
In 2016 many Kenyans that are active on social media were feaful as the dreaded KICA Act became law.
However, a few months in Justice Mumbi Ngugi dealt a blow to another section of it.
On 19th April 2016, she declared section 29B unconstitutional.
Section 29B reads, “A person who by means of a licensed telecommunication system sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both”
After the war on Al Shabaab, the Kenyan state instituted a barrage of unnecessary laws to curtail freedom of speech. The media called it the Kenya Security Laws.
There are many that are still in place, such as the one where someone will be arrested for sharing pictures of massacred Kenyan soldiers in Somalia.
One other that has persisted is the Computer Misuse and Cybercrime Act, however, the court temporarily stopped it among 22 other laws.
However, Justice Makau brought them back, but the Law Society of Kenya (LSK) is appealing that decision.
The civil application 102 of 2020 dated 20th April 2020 seeks to conservatory orders be issued suspending the enforcement of Sections 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 & 53 of the Computer Misuse and Cybercrime Act, 2018. In the alternative, the Applicant seeks conservatory orders suspending the enforcement of Section 22 (False publication) and Section 23 (Publication of false information) of the Computer Misuse and Cybercrime Act, 2018 (‘hereinafter the
Act’) pending the hearing and determination do the intended Appeal.
Blogger Cyprian Nyakundi supports this appeal.