The 2010 Constitution has been one of the biggest fortresses when it comes to protecting freedom of expression in Kenya, as stipulated in the Bill of Rights.
According to the Bill of Rights in the fourth chapter of the constitution, every Kenyan has the right to seek, receive, or share information or ideas, the right to artistic creativity and the right to academic freedom and scientific research.
However, there are some limitations to freedom of expression, including propaganda for war, incitement to violence, hate speech and advocacy of hatred that constitutes ethnic incitement, vilification of others, or incitement to cause harm.
The Constitution is complemented by the Computer Misuse and Cybercrimes Act 2018, which lists individual offences and the fines and jail terms for each.
Here are some offences and jail terms for making offensive posts online;
Cyber harassment
The Act defines cyber harassment as communication that is likely to cause targeted persons apprehension or fear of violence or damage or loss on that person’s property or detrimentally affects that person or is in whole or part, of an indecent or grossly offensive nature and affects the person.
If found guilty, the Act proposes a fine not exceeding Ksh20 million or imprisonment for a term not exceeding ten years, or both.
Cybersquatting
Cybersquatting, according to the Act, entails intentionally taking or using a name, business name, trademark, domain name or other word or phrase registered, owned or in use by another person on the internet or any other computer network, without authority or right.
A person who commits such an offence could be fined Ksh200,000 or imprisoned for a term not exceeding two years or both.
Publication of false information
The act states that “a person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of any person commits an offence”.
If a person is found guilty of such an offence, he/she faces a fine of up to Ksh5 million or imprisonment for a term not exceeding ten years, or both.
Child pornography
You could be found guilty of child pornography for intentionally publishing child pornography through a computer system, producing child pornography for the purpose of its publication through a computer system, downloading and distributing in any way from a telecommunications apparatus child pornography and possessing child pornography in a computer system or on a computer data storage medium.
The fine for such an offence could hit up to Ksh20 million or imprisonment for a term not exceeding 25 years, or both.
False publications
The Act states that “a person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence.”
The fine for such an offence could reach Ksh5 million or imprisonment for a term not exceeding two years, or both.
Issuance of false e-instructions
“A person authorized to use a computer or other electronic devices for financial transactions including posting of debit and credit transactions, issuance of electronic instructions as they relate to sending of electronic debit and credit messages or confirmation of electronic fund transfer, issues false electronic instructions, commits an offence,” the Act states.
On conviction, such a person faces a fine not exceeding Ksh200,000 or imprisonment for a term not exceeding two years, or both.
