Internet freedom in Kenya slightly improved during the coverage period, as fewer people were arrested or prosecuted over their online activities. Though the government did not restrict connectivity ahead of the August 2022 general elections, hate speech and manipulated information circulated on social media platforms including Facebook and TikTok. Anonymity remains a concern for Kenyans, especially as the government urges individuals to reregister SIM cards or face fines or imprisonment. Recent court rulings affirmed the independence of the judiciary and rejected laws that limit online expression, though courts have upheld similar laws in recent years.
Kenya holds regular multiparty elections. However, pervasive corruption and brutality by security forces remain serious problems. The country’s media and civil society sectors are vibrant, even as journalists and human rights defenders (HRDs) remain vulnerable to restrictive laws and intimidation.
- In July 2022, after the coverage period, Kenya’s ethnic cohesion watchdog threatened to suspend Facebook platforms for circulating hate speech through approved political advertisements ahead of the August 2022 elections. The government later clarified that it would not block or restrict social media platforms during the election (see B1 and B7).
- In June 2022, just after the coverage period, the Mozilla Foundation reported that TikTok videos containing false and manipulated election-related information were widely viewed in Kenya (see B5).
- In April 2022, the Supreme Court ruled that a constitutional review initiative backed by outgoing president Uhuru Kenyatta was unconstitutional in a decision that reaffirmed judicial independence (see C1).
- The Communications Authority (CA) announced that holders of unregistered SIM cards would face a fine, a six-month prison sentence, or both. Authorities extended the deadline for registration from April 2022 to October 2022 and continued to urge individuals holding SIM cards that were more than 10 years old to reregister their SIM cards by the same date (see C4).
|Do infrastructural limitations restrict access to the internet or the speed and quality of internet connections?||3.003 6.006|
Internet access is somewhat limited by poor infrastructure, but penetration rates and connection speeds continue to improve.
According to DataReportal’s Digital 2022 report, Kenya’s internet penetration rate was 42 percent as of January 2022.1 The CA, the national telecommunications regulator, reported that the total number of data and internet subscriptions increased to 44.88 million in September 2021 from 43 million in September 2020. The regulator also reported 64.89 million mobile phone subscriptions, representing a mobile penetration rate of 133.3 percent as of September 2020, up from 125.8 percent the previous year.2 A penetration rate above 100 percent indicates that some users have more than one mobile subscription. The CA further reports that third- and fourth-generation (3G and 4G) mobile network subscriptions respectively stand at 26.63 percent and 28.61 percent of Kenya’s population of 48.7 million.
Average connection speeds increased to 11.27 megabits per second (Mbps) in 2021, from 8.2 Mbps in 2019, according to Cable, a UK-based telecommunications company.3
In March 2021, Safaricom, Kenya’s leading telecommunications company, activated 5G services in four major urban centers and planned to expand service to 150 additional sites over the next 12 months.4 However, in May 2022, Safaricom’s chief executive officer announced it would slow the expansion of 5G mobile services due to high mobile phone costs and would instead focus on delivering 5G services to residences and offices covered by fiber-optic infrastructure.5
The National Optic Fibre Backbone Infrastructure project aims to increase internet connectivity across the country and improve the delivery of e-government services.6 Under the Kenya Vision 2030 development plan, currently in its third phase (2018–22), the government has prioritized the expansion of information and communication technology (ICT) capacity, with internet connectivity as a central pillar.7
Internet users in Kenya occasionally experience outages in internet services. In January 2022, Telkom users experienced a nationwide disruption, which lasted a few hours.8 Airtel users experienced data service outages in June9 and August 2020.10 Safaricom users experienced interruptions to data and voice services in August 201911 and to data services in November 2019.12
Since the outbreak of COVID-19, which has led many businesses and educational institutions to move their operations online, internet service providers (ISPs) have taken steps to improve bandwidth and meet increased demand.13
- 1Hootsuite & We Are Social, “Digital 2022: Kenya,” February 15, 2022, https://datareportal.com/reports/digital-2022-kenya.
- 2Communications Authority of Kenya, Quarterly Sector Statistics Report: Q1 FY 2021/2022 (July-September 2021), https://www.ca.go.ke/wp-content/uploads/2021/12/Sector-Statististics-Re…
- 3Cable.co.uk, “Worldwide broadband speed league 2021” https://www.cable.co.uk/broadband/speed/worldwide-speed-league/#regions.
- 4“Safaricom Switches on 5G across Kenya” March 26 2021, https://www.safaricom.co.ke/about/media-center/publications/press-relea…
- 5Nyambura Tabitha, “Safaricom slows expansion of 5G due to high phone prices” May 25 2022, https://eastafricamonitor.com/safaricom-slows-expansion-of-5g-due-to-hi…
- 6ICT Authority, “National Fibre Optic to cover all 47 counties by December 2015” http://icta.go.ke/national-fibre-optic-project-phase-2-roll-out/.
- 7“Third Medium Term Plan, 2018-2022,” https://vision2030.go.ke/publication/third-medium-term-plan-2018-2022/#….
- 8Netblocks, @netblocks, “Confirmed: #Kenya's Telkom Kenya is experiencing a nation-scale outage” Twitter, January 19, 2022, https://twitter.com/netblocks/status/1483870962076598273?s=20&t=apc7aoA…
- 9Dennis Waweru, “Airtel Kenya Subscribers Experience Service Outage on Data Across the Country,” Gadgets Africa, June 30, 2020, https://gadgets-africa.com/2020/06/30/airtel-kenya-subscribers-experien….
- 10Dennis Waweru, “Airtel Kenya Users Experience Service Outage on Mobile Data,” Gadgets Africa, August 19, 2020, https://gadgets-africa.com/2020/08/19/airtel-kenya-users-experience-ser….
- 11Kenn Abuya, “Safaricom Data Services are down,” Techweez, August 22, 2019, https://techweez.com/2019/08/22/safaricom-internet-down/.
- 12Kevin Rotich, “Safaricom restores data, voice services after major outage,” Business Daily, November 24, 2019, https://www.businessdailyafrica.com/news/Safaricom-restores-services/53….
- 13CIO East Africa, “WFH Video requirements putting pressure on networks,” May 18, 2020, https://www.cio.co.ke/wfh-video-requirements-putting-pressure-on-networ….
|Is access to the internet prohibitively expensive or beyond the reach of certain segments of the population for geographical, social, or other reasons?||1.001 3.003|
Internet access remains prohibitively expensive for much of the population, despite significant investments meant to improve rural connectivity.
In the Alliance for Affordable Internet’s 2021 Affordability Drivers Index, Kenya ranks 12th out of the 34 African countries surveyed, which was a drop from its ranking in 2020.1
As a result of the COVID-19 pandemic, Kenyans rely even more on the internet for work and learning. However, the results of a survey released in May 2020 indicate that just 22 percent of children can access digital learning, and public schools are often unable to support such services. The survey found poverty to be the main barrier inhibiting access.2
Following a lawsuit against Safaricom, Airtel, and Telkom for their data-expiration practices,3 Safaricom rolled out nonexpiry data bundles in October 2019, and Airtel rolled out its own in December.4 However, in the instance of Safaricom, nonexpiry data plans cost the same as expiring data packages but with half as much data. Crucially, this applies to the cheaper bundles and not the more expensive ones, affecting subscribers with less disposable income for data.5
The Finance Act, which was signed by Kenyatta in September 2018, increased the tax on telephone and internet data from 10 percent to 15 percent.6 In response to the tax, ISPs raised prices for both mobile data bundles and fixed-line home internet connections,7 making internet access unaffordable for many poorer Kenyans.
The affordability and availability of internet services vary between urban and rural areas. A gender-based digital divide also persists, with more men than women using mobile and internet services.8 Many rural areas have not benefited from Kenya’s high-capacity bandwidth, in part due to market disparities and weaknesses in last-mile connectivity, which is expensive and requires basic infrastructure such as electricity and roads that are often poorly developed. The Universal Service Fund (USF), which was established in 2013, aims to expand mobile and internet service in a bid to close the digital divide.9
The Voice Infrastructure and Services Project, a USF initiative administered by the CA, had connected 68 rural sublocations to basic mobile telephony as of November 2019, affecting 290,000 Kenyans who were previously unable to make and receive calls.10 The CA awarded 1.57 billion Kenyan shillings ($13.8 million) in contracts to develop further infrastructure for the project in February 2021.11 The Education Broadband Connectivity Project, another USF initiative, provided 887 secondary schools with 5 Mbps internet connections as of October 2019.12
- 1Alliance for Affordable Internet, “Affordability Drivers Index 2021” https://adi.a4ai.org/affordability-report/data/?_year=2021&indicator=IN…
- 2Uwezo Kenya, “Are Our Children Learning? Remote Learning Survey Report,” May 2020, https://palnetwork.org/wp-content/uploads/2020/05/Usawa-Agenda-2020-Rep….
- 3Business Daily, “Safaricom, Airtel sued over data expiry losses,” October 22, 2019 https://www.businessdailyafrica.com/news/Airtel-sued-over-data-expiry-l…; “Safaricom backs down on data expiry losses,” CNBC Africa, October 23, 2019, https://www.cnbcafrica.com/east-africa/2019/10/23/safaricom-backs-down-…; Sam Kiplagat, “Lawyer sues Safaricom, Airtel, overy data bundle expiry,” Daily Nation, October 22, 2019, https://www.nation.co.ke/kenya/life-and-style/lawyer-sues-safaricom-air….
- 4James Wanzala, ”Airtel rolls out no-expiry data rates,” Standard Media, December 10, 2019, https://www.standardmedia.co.ke/business/article/2001352663/airtel-roll….
- 5John Walubengo, “What's behind Safaricom's no-expiry data move?” October 29, 2019, https://www.nation.co.ke/oped/blogs/dot9/walubengo/2274560-5328654-138t….
- 6Republic of Kenya, “The Finance Act, 2018,” September 21, 2018, https://www.kra.go.ke/images/publications/Finance-Act-2018.pdf.
- 7Saruni Maina, “The Grim Effects of Kenya’s Finance Act 2018 on Cost of Internet,” Techweez, October 19, 2018, https://techweez.com/2018/10/19/effects-finance-act-2018-internet-cost/.
- 8Based on Kenya National Bureau of Statistics, “Economic Survey 2017,” July 5, 2017, https://www.theelephant.info/documents/kenya-national-bureau-of-statist…; for gender disparity, see page 249.
- 9Muthoki Mumo, “Sh74 billion needed to bridge Kenya’s yawning digital divide,” Daily Nation, May 28, 2013, https://www.nation.co.ke/business/news/Sh74-billion-needed-to-bridge-Ke….
- 10Communications Authority of Kenya, “CA connects 68 remote sub-locations to mobile voice services,” November 19, 2019, https://ca.go.ke/ca-connects-68-remote-sub-locations-to-mobile-voice-se….
- 11Connecting Africa, “$14.4M Kenyan deal to bring mobile infrastructure to remote areas,” February 12, 2021, http://www.connectingafrica.com/document.asp?doc_id=767358
- 12Communications Authority of Kenya, “Education Broadband Connectivity Project,” October 16, 2019, https://ca.go.ke/education-broadband-connectivity-project/.
|Does the government exercise technical or legal control over internet infrastructure for the purposes of restricting connectivity?||6.006 6.006|
There were no reports of the government using control over internet infrastructure to limit connectivity during the coverage period. In June 2021, Interior Minister Fred Matiang’i said the government would not disrupt connectivity during the August 2022 elections.1 Even after the government gave Facebook seven days to tackle hate speech on its platform in August 2022, days ahead of the August 9 polls (see B7), ministers reiterated the government would not disrupt connectivity.2 Kenya’s decentralized internet infrastructure and nongovernmental control of the Kenya Internet Exchange Point (KIXP) make it unlikely that the government could exercise technical control over the internet.
In July 2019, the ICT Authority introduced a regulation that requires all owners of fiber-optic infrastructure to register existing networks and seek approval for any new installations.3 The ICT Authority is likely to treat the registration process for existing networks as a de facto approval process that could prove cumbersome, rather than a straightforward registration mechanism, though it is unclear whether the regulation will involve the imposition of fees.4
Kenya connects to the international internet via four main undersea cables—SEACOM, the East Africa Marine System (TEAMS), the Eastern Africa Submarine Cable System (EASSY), and the Lower Indian Ocean Network (LION2); three others—Africa1, Djibouti Africa Regional Express (DARE), and Liquid Sea—land in Mombasa.5 The provision of licenses for access to the international gateway was liberalized in 2004.6
The KIXP is operated by the Telecommunication Service Providers Association of Kenya (TESPOK), a nonprofit organization representing the interests of ISPs. The KIXP keeps domestic Kenyan internet traffic within the country, lowering the cost of connectivity. A second IXP was established in Mombasa, but its failure to attract enough users led to its closure in 2015.7 With support from the African Union, a backup IXP was established in 2016 to further lower the costs of connectivity for ISPs.8
- 1Vincent Kejitang, “Matiangi opines on shutting down the internet during 2022 elections,” June 30, 2021, The Standard, https://www.standardmedia.co.ke/entertainment/the-standard/2001417130/m…
- 2“Kenya Says Social Media Won’t Be Blocked After Warning to Facebook,” Capital News, August 1, 2022, https://www.capitalfm.co.ke/news/2022/08/kenya-says-social-media-wont-b…
- 3Hapa Kenya, “Fibre optic cable networks to now be registered with ICTA in new regulations,” July 25, 2019, https://web.archive.org/web/20190725113820/https://hapakenya.com/2019/0….
- 4Interview with [Official at Bloggers Association of Kenya], [June, 2020].
- 5TeleGeography, “Submarine Cable Map”, accessed on June 14, 2017, http://www.submarinecablemap.com/#/country/kenya.
- 6International Telecommunication Union, “Kenya defines licensing framework for liberalized sector,” https://www.itu.int/ITU-D/treg/Newsletters/Research%20Material/Kenya-Ca….
- 7Okuttah Mark, “Mombasa Internet traffic re-routed to Nairobi hub,” Business Daily, June 8, 2015, http://www.businessdailyafrica.com/corporate/Mombasa-Internet-traffic-r….
- 8Ishaq Jumbe, “Mombasa tipped to be region’s internet hub after IXP launch,” The Standard, June 23, 2016, https://www.standardmedia.co.ke/business/article/2000206339/mombasa-tip….
|Are there legal, regulatory, or economic obstacles that restrict the diversity of service providers?||4.004 6.006|
Economic obstacles restrict the diversity of service providers in Kenya. There are five mobile service providers: Safaricom (which holds a 64.6 percent market share as of September 2021), Airtel (26.4 percent), Telkom (6.4 percent), Equitel (2.3 percent), and Jamii Telecommunication (0.3 percent).1
In March 2022, Airtel and Telkom were fined 26.3 million shillings ($231,900) and 11.4 million shillings ($100,500) respectively because they did not provide sufficiently high-quality service as stipulated by the CA.2
In December 2021, a proposed merger between Airtel and Telkom collapse; the National Treasury had previously been warned by Parliament not to approve the deal.3 A court had ruled the companies had sufficient regulatory approval to proceed and quashed an inquiry from an anticorruption commission in February 2021.4 The CA initially approved the merger in September 2019.5
The government owns 35 percent of Safaricom6 and 40 percent of Telkom.7 Because Safaricom holds a majority of the market, there have been calls to declare it a dominant player, which could force the company to spin off its mobile money service in an effort to foster greater competition.8 A bill introduced in March 2021 could have compelled Safaricom, Airtel, and Telkom to split their telecommunications businesses from their mobile money holdings.9 However, as of August 2021, the bill garnered no interest and was subsequently tabled by the government.10
Previously, in January 2018, the CA dropped plans to split Safaricom amid fierce resistance from the company and other powerful business interests.11 In July 2018, the Parliamentary Committee on Communication, Information, and Innovation opened an investigation into the mobile sector to identify legislative and regulatory gaps that may lead to anticompetitive behavior or restrict growth.12
The CA is the regulatory body that licenses all communications systems.13 As of April 2018, it listed 3 providers with submarine-cable landing rights and 57 network facility providers (3 of which are national providers, while the remainder are regional).14 These licensees provide, among other things, facilities for internet, voice, and mobile virtual operations. Cybercafés are licensed as business units by local governments, and there are no special regulatory or economic obstacles to their establishment.
- 1Communications Authority of Kenya, Quarterly Sector Statistics Report: Q1 FY 2021/2022 (July-September 2021), https://www.ca.go.ke/wp-content/uploads/2021/12/Sector-Statististics-Re…
- 2Frankline Sunday, “Airtel, Telkom fined Sh 38M over quality,” The Standard, March 4, 2022, https://www.standardmedia.co.ke/business/news/article/2001439276/airtel…
- 3Bonface Otieno, “Mystery surrounding Telkom Kenya’s Sh1bn CA debt deepens,” Business Daily, December 1, 2021, https://www.businessdailyafrica.com/bd/corporate/companies/mystery-telk…
- 4Sam Kiplagat and Charles Mwaniki, “Court clears Telkom, Airtel merger,” Business Daily, February 11, 2021, https://www.businessdailyafrica.com/bd/corporate/companies/court-clears….
- 5Lynette Mukami, “Kenya's telecoms regulator approves Airtel, Telkom merger,” The East African, December 13, 2019, https://www.theeastafrican.co.ke/business/Airtel-Telkom-merger-approved….
- 6Safaricom, “Safaricom Annual Report 2019,” https://www.safaricom.co.ke/annualreport_2019/assets/Safaricom_FY19_Ann….
- 7Abdi Latif Dahir, “Airtel and Telkom are uniting to take on Safaricom in Kenya,” Quartz Africa, February 12, 2019, https://qz.com/africa/1548281/airtel-and-telkom-are-uniting-to-take-on-….
- 8Jaindi Kisero, “Safaricom faces M-Pesa break up in market dominance war,” Business Daily, February 23, 2017, http://www.businessdailyafrica.com/corporate/Safaricom-faces-M-Pesa-bre….
- 9Edwin Mutai, “Safaricom faces fresh split push,” Business Daily, March 1, 2021, https://www.businessdailyafrica.com/bd/economy/safaricom-faces-fresh-sp…
- 10Edwin Mutai, “MPs snub bill seeking M-pesa, Safaricom split”, Business Daily, February 19, 2021, https://www.businessdailyafrica.com/bd/economy/mps-snub-bill-seeking-m-…
- 11Muthoki Mumo, “Regulator drops plan to split up Safaricom,” Business Daily, January 3, 2018, https://www.businessdailyafrica.com/corporate/companies/Regulator-drops….
- 12Edwin Mutai, “Parliament opens probe into telcos mobile money and service charges,” Daily Nation, July 8, 2018, https://www.nation.co.ke/business/Parliament-opens-probe-into-telcos-mo….
- 13Communications Authority of Kenya, “Register of unified Licensing Framework Licenses”, http://www.ca.go.ke/index.php/telecommunication.
- 14Communications Authority of Kenya, “Register of Unified Licensing Framework Licensees,” May 2017/2018, https://ca.go.ke/wp-content/uploads/2018/03/Register-of-Unified-Licensi…; Communications Authority of Kenya, “Register of Unified Licensing Framework Licensees,” February 2017, https://web.archive.org/web/20170619190047/http://ca.go.ke/images/downl….
|Do national regulatory bodies that oversee service providers and digital technology fail to operate in a free, fair, and independent manner?||2.002 4.004|
The regulatory bodies that oversee service providers generally operate in a fair manner, but there have been some encroachments on regulators’ independence in the past. The CA was managed by an acting director general between August 2019 and October 2021, amid leadership struggles within the regulator.
The CA’s management is vested in a board of directors that consists of a chairperson appointed by the president, three principal secretaries hired by the Public Service Commission, and seven persons appointed by the cabinet secretary of the ICT Ministry.1 The day-to-day operations of the regulator are managed by a director general who is appointed by the board to a four-year term, renewable only once.2 The director general is an ex officio member of the board without any voting rights.
While the authority’s independence is provided for under Section 5 of the Kenya Information and Communications Act (KICA), tensions between the ICT Ministry and the board of directors on one side, and the director general of the CA on the other, have flared up in recent years.
In October 2021, former Independent and Electoral Boundaries Commission (IEBC) chief executive Ezra Chiloba was appointed CA director general.3 During his tenure at the IEBC, Chiloba oversaw a controversial election marred by technical disruptions.
The August 2019 exit of the previous director general, Francis Wangusi, was marred by confusion. In July 2019, ICT Cabinet Secretary Joe Mucheru announced four new board members for the CA.4 In November 2019, a court found the appointments unconstitutional and contrary to the Public Service Commission Act, 2017, which requires advertisement for positions and competitive recruitment procedures. The ruling produced some confusion regarding the appointment of a successor for Wangusi, as it cast doubt on whether the board tasked with making the new appointment was properly constituted.5
Wangusi had clashed with the board and the ICT Ministry on a variety of topics. For instance, the two sides disagreed about how to implement a report on Safaricom’s market dominance.6
- 1Laws of Kenya, “Kenya Information Communication Act,” Section 6, https://www.unodc.org/res/cld/document/ken/1930/information-and-communi….
- 2Laws of Kenya, “Kenya Information and Communication Act,” Section 11, https://www.unodc.org/res/cld/document/ken/1930/information-and-communi….
- 3Winfrey Owino, “ Ezra Chiloba takes over at the Communications Authority,” October 4, 2021, Business Daily, https://www.standardmedia.co.ke/national/article/2001425268/ezra-chilob…
- 4Communications Authority of Kenya, “Authority gets new Board Members,” July 23, 2019, https://ca.go.ke/authority-gets-new-board-members/; Elizabeth Kivuva, “ CS Mucheru announces new board settling another leadership wrangle,” The Star, July 27, 2019, https://www.the-star.co.ke/business/2019-07-27-cs-mucheru-announces-new….
- 5John Muchangi, “Wanjau remains acting CA Boss, says board chair Gituku,” The Star, November 16, 2019, https://www.the-star.co.ke/news/2019-11-16-wanjau-remains-acting-ca-bos…; 49 Victor Amadala, “CA intensifies search for a new director general,” The Star, May 23, 2020, https://www.the-star.co.ke/business/kenya/2020-05-23-ca-intensifies-sea….
- 6Nicholas Komu, “Francis Wangusi says CA has no Sh1bn for police,” Daily Nation, March 21, 2018 https://www.nation.co.ke/news/CA-boss-Wangusi-defies-Uhuru-s-Sh1bn-cash….
|Does the state block or filter, or compel service providers to block or filter, internet content, particularly material that is protected by international human rights standards?||6.006 6.006|
Political and social content is generally not subject to blocking in Kenya. Testing by the Open Observatory of Network Interference (OONI) revealed no signs of website blocking or censorship as of May 2022.1 Social media platforms and communication applications such as Facebook, Twitter, YouTube, and LinkedIn were also fully accessible.2
In July 2022, the National Cohesion and Integration Commission (NCIC), Kenya’s ethnic watchdog, threatened to suspend Facebook operations if the platform did not take steps to eliminate hate speech (see B7). In August 2022, the ICT minister clarified that the ministry would not block social media platforms during the election and stated it was not clear what legal framework would be used to suspend Facebook.3 Later that month, Access Now reported that it received no reports of disruption during the polls.4
The internet remained unrestricted during the tense period following the contested 2017 presidential election, including when the government jammed the broadcast signals of three leading television stations that were planning to air then opposition leader Raila Odinga’s unofficial inauguration in January 2018.5 The networks’ websites were not blocked, enabling them to stream the event online.6
- 1Open Observatory of Network Interference Explorer, “Kenya Country Page,” accessed February 15, 2021,https://explorer.ooni.org/country/KE.
- 2Open Observatory of Network Interference Explorer, “Kenya Country Page,” accessed February 15, 2021, https://explorer.ooni.org/country/KE.
- 3“Kenya Says Social Media Won’t Be Blocked After Warning to Facebook,” Capital News, August 1, 2022, https://www.capitalfm.co.ke/news/2022/08/kenya-says-social-media-wont-b…
- 4Access Now, “#KeepItOn: 2022 elections and internet shutdowns watch,” September 26, 2022, https://www.accessnow.org/elections-internet-shutdowns-watch-2022/
- 5BBC, “Kenya TV channels still off air despite court order,” February 1, 2018, https://www.bbc.com/news/world-africa-42905290.
- 6Jina Moore, “Kenyans Name a ‘People’s President,’ and TV Broadcasts Are Cut,” The New York Times, January 30, 2018, https://www.nytimes.com/2018/01/30/world/africa/raila-odinga-kenya.html.
|Do state or nonstate actors employ legal, administrative, or other means to force publishers, content hosts, or digital platforms to delete content, particularly material that is protected by international human rights standards?||2.002 4.004|
Although censorship is not systematic, the state has increasingly sought to remove online content that it deems immoral or defamatory.
The Kenya Film Classification Board (KFCB) prohibited online and offline distribution, exhibition, and broadcast of the films Baadhai Do in February 20221 and I Am Samuel in September 2021.2 The KFCB claimed the films were inappropriate for Kenyan audiences because they attempted to normalize same-sex relationships. The penal code criminalizes same-sex sexual activity, and the KFCB routinely censors LGBT+ content.3
In March 2021, then KFCB chairman Ezekiel Mutua ordered comedian Eric Omondi to take down episodes of his YouTube show Wife Material, calling the videos pornographic. Omondi complied. Prior to the removal of the videos, Omondi was arrested on Mutua’s orders, alongside 15 Wife Material cast members (see C3). Omondi was charged with violating the Film and Stage Plays Act, which requires certification from the KFCB to exhibit or distribute films. Omondi and Mutua reached an out-of-court settlement over the charges.4
In August 2020, during the previous coverage period, a website that tallied the amount of money lost to corruption during the Kenyatta administration went offline after Charles Gichuki, who ran the website, was arrested (see C3).5
The government also occasionally requests content removals for reasons other than morality. Between July and December 2021, Google received 6 takedown requests from Kenyan authorities; 2 were due to defamation, 2 were over obscenity issues, 1 was for privacy reasons, and 2 were requested for "other" reasons. During the same period, Meta reported no content restrictions specifically imposed in Kenya.6
Authorities have sometimes compelled ordinary users and online journalists to delete content from their social media profiles and websites. In December 2018, a court ordered blogger Cyprian Nyakundi to remove an article on his website that allegedly defamed politician Steve Mbogo.7
- 1Renee Were, “Board bans Baadhai Do films, says it flouts law and values,” February, 2022, The Standard, https://www.standardmedia.co.ke/standard-entertainment/article/20014376…
- 2Fay Ngina, “KFCB bans gay film ‘I am Samuel’, terms it blasphemous,” September, 2021, The Standard, https://www.standardmedia.co.ke/entertainment/the-standard/2001424264/k…
- 3Kenya Film Classification Board, “Governing Laws,” Accessed July 16, 2018, http://kfcb.co.ke/about/governing-laws/. Penal Code Sections 162, 163 and 165 punishes gay relationships with jail terms ranging from 5 to 21 years dependent upon whether relations were consensual. Attorney General, Penal Code Chapter 63. Nairobi: National Council for Law Reporting, 2014.
- 4Keshi Ndirangu, “Wife Material will be back in two weeks – Eric Omondi,” Nairobi News, March 21, 2021, https://nairobinews.nation.co.ke/featured/wife-material-will-be-back-in…; “ Kenya: Don’t use the censorship law to prosecute comedian Eric Omondi,” ARTICLE19, March 12, 2021, https://www.article19.org/resources/kenya-dont-use-the-censorship-law-t….
- 5Amnesty International Kenya https://twitter.com/AmnestyKenya/status/1296689559854624768?s=20l; Web Archive of https://uhuru.surge.sh/#top https://web.archive.org/web/20200820144442/https://uhuru.surge.sh/
- 6Facebook, “Transparency: Content Restrictions-Kenya,” accessed June 2022, https://transparency.facebook.com/content-restrictions/country/KE.
- 7Faith Karanja, “Court orders blogger Nyakundi to pull down defamatory articles against politician,” The Standard, December 20, 2018, https://www.standardmedia.co.ke/article/2001306978/court-orders-blogger….
|Do restrictions on the internet and digital content lack transparency, proportionality to the stated aims, or an independent appeals process?||3.003 4.004|
Restrictions on the internet are largely transparent, but censorship of online content sometimes lacks fairness or proportionality.
In March 2021, Aden Duale, a parliamentarian with the ruling Jubilee Coalition, introduced a bill in the National Assembly to empower the National Computer and Cybercrimes Coordination Committee (NCCCC) to “recommend websites to be rendered inaccessible” within Kenya if they are pornographic in nature, or otherwise promote terrorism or cult or religious activities deemed extreme.1 The NCCCC is a government-appointed body that lacks transparency and public oversight mechanisms (see C2). The bill was still being considered during the coverage period.2
The KFCB has justified banning advertisements that contain sexual content and promote abortion services (see B2) by invoking a law that prohibits the airing of sexual content before 10 p.m. Those found to have distributed video content without KFCB approval face fines of up to 100,000 shillings ($880) and prison terms of up to five years,3 as outlined in the Films and Stage Plays Act, 2012.4
In advance of the 2017 election, the CA implemented new guidelines to curb online abuse in partnership with the NCIC, a statutory body that works to reduce interethnic conflict.5 The broadly worded guidelines prohibit political messages that “contain offensive, abusive, insulting, misleading, confusing, obscene, or profane language,” and analysts warned that they could be used to limit legitimate online expression. The guidelines also require administrators of social media pages to “moderate and control the content and discussions generated on their platform” and give mobile service providers the power to block the transmission of political messages that do not comply with the guidelines at their discretion.6 In addition, bulk political messages require prior approval from the NCIC.
Internet intermediaries in Kenya can be held liable for illegal content, such as copyright infringements and hate speech, though they are not required to actively monitor traffic passing through their networks unless they are made aware of illegal content.7 Under the National Cohesion and Integration Act, 2008 (NCIA) which outlaws hate speech, a media enterprise can be fined up to one million shillings ($8,800) for publishing hate speech, which is broadly defined in the legislation.8 This provision can be invoked to block or take down online content, according to the Association of Progressive Communications.9
- 1Sam Ogina, “Bill seeks 25-year jail term or Ksh.20M fine for anyone who shares pornography,” Citizen Digital, March 1, 2021 https://citizentv.co.ke/news/bill-seeks-25-year-jail-term-or-ksh-20m-fi…; “The Computer Misuse and Cybercrimes (Amendment) Bill, 2021,” Kenya Gazette Supplement No. 64 (National Assembly Bills No. 11), Republic of Kenya, April 16, 2021, http://www.parliament.go.ke/sites/default/files/2021-05/Computer%20Misu….
- 3Bonface Otieno, “Fresh Fry, Marie Stopes ads banned over sexual, abortion content,” Business Daily, September 11, 2018, https://www.businessdailyafrica.com/news/Pwani-Oil--Marie-Stopes-ads-ov….
- 4National Council for Law Reporting, “Films and Stage Play Act Chapter 222,” Revised 2012, http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/FilmsandStagePla….
- 5Communications Authority of Kenya, “Guidelines on Prevention of Dissemination of Undesirable Bulk and Premium Rate Political Messages and Political Social Media Content via Electronic Communications Networks in Kenya,” July 2017, https://ca.go.ke/wp-content/uploads/2018/02/Guidelines-on-Prevention-of….
- 6Article19, “Kenya: New Draft Guidelines on dissemination via Electronic Communications Networks should be scrapped,” July 28, 2017, https://www.article19.org/resources/kenya-new-draft-guidelines-on-disse…; Reporters Without Borders, “Kenyan election campaign hits journalists and media freedom,” July 8, 2017, https://rsf.org/en/news/kenyan-election-campaign-hits-journalists-and-m….
- 7Alice Munyua, Grace Githaiga and Victor Kapiyo, “Intermediary Liability in Kenya,” (research paper, commissioned by Association for Progressive Communication), https://www.apc.org/sites/default/files/Intermediary_Liability_in_Kenya….
- 8National Council for Law Reporting, “National Cohesion and Integration Act No. 12 of 2008,” Revised 2012, accessed September 12, 2014, http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/NationalCohesionandI… Section 62 (1) defines hate speech as “words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race.” Section 62 (2) holds: “A newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.”
- 9Alice Munyua, Grace Githaiga and Victor Kapiyo, “Intermediary Liability in Kenya,” (research paper, commissioned by Association for Progressive Communication), https://www.apc.org/sites/default/files/Intermediary_Liability_in_Kenya….
|Do online journalists, commentators, and ordinary users practice self-censorship?||3.003 4.004|
Arrests of online journalists and statements by media regulators have prompted concerns about self-censorship by the press. The importance of government advertising purchases for the financial survival of media outlets, including those that publish online, results in some self-censorship among journalists (see B6).
In a lawsuit challenging the arrests of bloggers for allegedly posting false or alarming information about COVID-19 (see C3), the Law Society of Kenya argued that such arrests and convictions would encourage self-censorship by online publishers.1
Separately in March 2020, the Kenya Editors’ Guild voiced concern that a statement by the Media Council of Kenya (MCK), a media regulator, could increase self-censorship among journalists. The regulator had accused editors of breaching the code of conduct in the practice of journalism. 2
According to the MCK, there were 10 violations of press freedom as of February 2022, 70 in 2021, and 93 in 2020. The police and other government authorities are reportedly responsible for most of the attacks against journalists.3 Such attacks have a chilling effect on speech and can lead to self-censorship online.
- 1Annette Wambulwa, “State opposes LSK case against arrest of bloggers,” The Star, June 3, 2020, https://www.the-star.co.ke/news/2020-06-03-state-opposes-lsk-case-again….
- 2Wilfred Ayaga, “Stop killing press freedom, editors tells Media Council,” The Standard, March 2, 2020, https://www.standardmedia.co.ke/article/2001362525/stop-killing-press-f…; Churchill Otieno, “Media council’s action a serious affront to editorial independence,” Daily Nation, March 18, 2020, https://www.nation.co.ke/oped/opinion/Media-council-action-serious-affr….
- 3Media Council of Kenya, “Press Freedom Violations: Current Status,” accessed March 10, 2022, https://mediacouncil.or.ke/node/445
|Are online sources of information controlled or manipulated by the government or other powerful actors to advance a particular political interest?||2.002 4.004|
Online sources of information are not systematically controlled or manipulated by the government or other powerful actors to advance a particular political interest. Coordinated online campaigns have been observed on politically sensitive topics.
In February 2022, researchers from the Mozilla Foundation revealed that CitizenGO, a right-wing group based in Spain, used disinformation and inflammatory language to influence Twitter conversations about Kenyan reproductive health policy. Twitter subsequently suspended 240 accounts connected to this group. According to the report, CitizenGO likely coordinated 11 Twitter campaigns by sending instructions, money, and content to Kenyan users, who would spread messaging via Twitter and WhatsApp.1
Another Mozilla Foundation report, released in June 2022 and after the coverage period, revealed that TikTok was being used to spread hate speech, incitement against communities, and manipulated content ahead of the August 2022 elections. Researchers identified several videos that were widely viewed and contained manipulated content, including a falsified Kenya Television Network bulletin discussing a false opinion poll, a video of an inauthentic tweet from US president Joe Biden, and videos displaying fake newspaper covers.2
Loosely organized “bloggers for hire” use their collective social media clout to shape public opinion and manipulate the online information landscape.3 For instance, a network of accounts amplified content that discredited then deputy president William Ruto in order to support Kenyatta and former prime minister Odinga, according to a June 2020 report. The accounts sought to position the content in the top trending topics in Kenya that May.4 Commentators also alleged that the government coordinated social media users5 to discredit protesting health-care workers in December 2020; the workers mobilized over working conditions after a young doctor, whose salary had gone unpaid for months, died of COVID-19.6
Researchers identified at least eight disinformation campaigns aimed at Kenyan Twitter users between May and June 2021. The campaigns amplified narratives to support the constitutional review process (see C1), discredit civil society activists opposed to the review, and delegitimize judges perceived as opponents of Kenyatta. In some cases, participants in the disinformation campaigns were coordinated over WhatsApp groups and paid the equivalent of $10 to $15 a day to boost the narratives on Twitter. The researchers found that the extent of the campaigns—over 23,000 posts distributed by 3,700 accounts—impacted legitimate activism on Twitter.7
Manipulation and overt disinformation proliferated online during the 2017 election season. 8 For instance, the British political consulting firm Cambridge Analytica reportedly aided Kenyatta’s reelection bid and was linked to two websites—TheRealRaila.com and UhuruForUs.com9 —that respectively spread hate speech and negative ads about Odinga, then an opposition presidential candidate, and pushed positive narratives about the incumbent.10
Previously, a group of bloggers for hire known as the “36 Bloggers” was alleged to work within the Executive Office of the President’s Directorate of Digital Communication.11 Another group was known as the “527 militia,” with 527 ostensibly signifying the amount of shillings paid to each blogger to promote certain hashtags.12 In 2019, bloggers for hire were generally most active on Facebook, Twitter, and WhatsApp, using both human-run and automated bot accounts to attack opposition figures and support the government, most often through targeted advertising and disinformation.13
- 1Mozilla Foundation, “Investigation: European Group Likely Manipulated Twitter Conversations in Kenya About Reproductive Rights, Health,” February 22, 2022, https://foundation.mozilla.org/en/blog/investigation-european-group-lik…
- 2Mozilla Foundation, “From Dance App to Political Mercenary: How disinformation on TikTok gaslights political tensions in Kenya,” https://foundation.mozilla.org/en/campaigns/kenya-tiktok/
- 3Patrick Mayoyo, “Fake news by bloggers could mess Kenya’s 2017 elections,” The Standard, April 21, 2017, https://www.standardmedia.co.ke/business/article/2001237115/fake-news-b….
- 4“Online Political Trolls,” Code for Africa, June 2020, https://investigate.africa/wp-content/themes/ancir/dist/assets/reports/….
- 5See, for example: @ItsDavidMaina, “Here's Dr. Stephen Mogusu's payslip for November, 2020. While I agree we need to take care of our doctors, it's immoral for KMPDU to whip up emotions by claiming the late doctor who succumbed to Covid-19 had not been paid for five months. #DrStephenMogusu #RipDrMogusu,” Twitter, December 8, 2020, https://twitter.com/ItsDavidMaina/status/1336217224764395520.
- 6“This Could Be The Reason Why ODM Bloggers Are So Bitter And Angry With The Late Dr. Stephen Mogusu,” Opera News, December 2020, https://ke.opera.news/ke/en/politics/6f2df08b74ba581758b5cbe31860fcd5; “Machakos Governor, Dr. ALFRED MUTUA, is paying bloggers to vilify Dr. STEPHEN MOGUSU – The fact remains he was not paid a salary for 5 months!,” E! News Kenya, December 8, 2020, https://enewskenya.blogspot.com/2020/12/machakos-governor-dr-alfred-mut….
- 7Odanga Madung and Brian Obilo, “Inside the Shadowy World of Disinformation-for-hire in Kenya,” Mozilla Foundation, September 2, 2021, https://foundation.mozilla.org/documents/221/Report_Inside_the_shadowy_….
- 8#DavidNdiiExposed, “Walter Menya,” #MaizePriceScandal, and #GoKDelivers were a few examples of social media campaigns started or promoted by pro-government or opposition social media users. See, for example, the news cycle on Walter Menya arrest: Daily Nation, “Blogger who leaked exclusive DCI photos of Walter Menya,” June 20, 2017, http://www.nation.co.ke/news/Pauline-Njoroge-Walter-Menya-photos-DCI/10….
- 9Jina Moore, “Cambridge Analytica had a role in Kenya Election, Too,” The New York Times, March 20, 2018, https://nyti.ms/2uWD2zx.
- 10Kampala Dispatch, “Uhuru hires data firm behind Trump, Brexit victories,” May 10, 2017, http://dispatch.ug/2017/05/10/uhuru-hires-data-firm-behind-trump-brexit….
- 11Kenya Today, “Government’s 36 bloggers FINALLY Report to work Today,” October 26, 2015, https://www.kenya-today.com/news/governments-36-bloggers-finally-report….
- 12Research conducted by author in 2017-2018.
- 13Samantha Bradshaw and Philip N. Howard, “The Global Disinformation Order: 2019 Global Inventory of Organised Social Media Manipulation,” Computational Propaganda Research Project, University of Oxford, September 2019, https://comprop.oii.ox.ac.uk/wp-content/uploads/sites/93/2019/09/CyberT….
|Are there economic or regulatory constraints that negatively affect users’ ability to publish content online?||2.002 3.003|
There are few regulatory constraints that negatively affect users’ ability to publish content online, but media outlets’ reliance on revenue from government advertisements causes economic challenges for some entities.
The economic independence of the news ecosystem has been severely hampered by the COVID-19 pandemic, including for online outlets. In November 2020, Kenya Union of Journalists president Eric Oduor reported that 300 journalist jobs had been lost.1
The Government Advertising Agency (GAA) was established in 2015 to manage government advertising purchases. In August 2018, the Directorate of Criminal Investigation began an investigation of the GAA for allegedly failing to pay 2.8 billion shillings ($27 million) in advertising fees owed to media outlets.2 The Kenya Media Sector Working Group claimed in May 2019 that the GAA was actively working to muzzle the media by starving outlets of needed revenue.3 In July 2019, Cabinet Secretary Mucheru assured the media that all debts owed by the government would be paid.4 As of March 2020, the ICT Ministry reportedly owed media houses up to 2.5 billion shillings ($24 million).5 The debts remained pending as of July 2022.6
The government has been known to use its advertising budget to influence media outlets’ editorial choices, resulting in financially induced self-censorship (see B4).7 Some online outlets also adjust the tone of their content to avoid upsetting other major advertisers,8 though this phenomenon has been more frequently observed among traditional media outlets. For instance, in September 2020, the Council of Governors suspended advertising with Nation Media Group after the media house published a story on graft.9
Powerful, politically influential media owners have affected the editorial lines and reporting of their outlets to advance their own interests.10
- 1“The 2020 pandemic has challenged press freedom in Africa,” Relief Web, November 28, 2020, https://reliefweb.int/report/world/2020-pandemic-has-challenged-press-f…
- 2Simon Ndonga, “DCI probing Sh2.8bn scandal at Government Advertising Agency,” Capital News, August 11, 2018, https://www.capitalfm.co.ke/news/2018/08/dci-probing-sh2-8bn-scandal-at….
- 3Rawlings Otieno, “Advertising body a tool to muzzle media, say editors,” The Standard, May 4, 2019, https://www.standardmedia.co.ke/article/2001323867/advertising-body-a-t….
- 4Kenya News, “Government To Clear All Debts Owed To Media Houses, CS Mucheru,” July 10, 2019, https://www.kenyanews.go.ke/government-to-clear-all-debts-owed-to-media….
- 5Bob Wekesa, “Why Government Advertising Agency was doomed to fail,” August 18, 2018, https://www.nation.co.ke/dailynation/blogs-opinion/opinion/why-governme….
- 6Geogre Odiwuor, “Kenya: Media Houses Ask State to Clear Huge Debt, Restore Advertising,” All Africa, December 6, 2020, https://allafrica.com/stories/202012080321.html
- 7Alan Rusbridger, “Kenya: The Devious Art of Censorship,” The New York Review of Books, December 8, 2016, http://www.nybooks.com/articles/2016/12/08/kenya-devious-art-of-censors….
- 8For example, after publishing a critical report about Safaricom, Kenya’s leading telecommunication provider, in early 2017, one journalist later said that his editor had not authorized the story in a move that effectively distanced the outlet from the article’s findings. Author’s Phone Interview in Nairobi, March 2017, in reference to CIPIT’s surveillance findings on Safaricom Internet networks; Moses Karanja, “CIPIT Research Reveals Evidence of Internet Traffic Tampering in Kenya: The Case of Safaricom’s Network,” CIPIT, March 23, 2017, https://cipit.strathmore.edu/cipit-research-reveals-evidence-of-interne….
- 9“Media outcry as Council of Governors suspend advertising with NMG over graft story,” Citizen Digital, September 9th 2020, https://citizentv.co.ke/news/media-outcry-as-council-of-governors-suspe…
- 10Ramadhan Rajab, “Press freedom reels under new forms of censorship,” The Star, May 3, 2019, https://www.the-star.co.ke/news/big-read/2019-05-03-press-freedom-reels….
|Does the online information landscape lack diversity and reliability?||3.003 4.004|
The online information landscape is diverse and vibrant, with outlets reporting on many issues and offering a wide range of viewpoints. Social media platforms have become an important means for journalists to gather and share news. Traditional broadcast outlets have increasingly utilized social media and digital platforms to interact with users in real time. However, recent reports published during and after the coverage period have revealed that social media and digital platforms are being used to share misinformation that stokes ethnic rivalries (see B5).
In July 2022, after the coverage period, the NCIC threatened to suspend Facebook operations in the country if the platform could not address hate speech and inciteful language being disseminated during the run-up to the August 2022 elections, after it was revealed that Facebook approved 20 political advertisements containing hate speech.1
COVID-19-related misinformation is widely spread in Kenya, including on social media platforms like WhatsApp.2 The problem has affected the country’s ability to effectively manage the spread of the virus, with many residents of informal settlements reportedly believing that the virus cannot be contracted by Kenyans.3
In October 2018, Facebook announced that it would partner with Africa Check, Africa’s first independent fact-checking organization, and Agence France-Presse (AFP) to help assess the accuracy of information being disseminated on its platform.4
- 1“Kenya Order Meta’s Facebook to Tackle Hate Speech of Face Suspension,” Reuters, July 29, 2022, https://www.reuters.com/world/africa/kenyas-cohesion-watchdog-gives-met…
- 2Yomi Kazeem, “With over 250,000 cases, misinformation is compromising Africa’s Covid-19 response,” Quartz Africa, June 22, 2020, https://qz.com/africa/1871683/whatsapp-is-a-key-source-of-covid-19-info….
- 3Georgina Smith, “Stamping out misinformation in Kenya’s COVID-19 fight,” Aljazeera, April 25, 2020, https://www.aljazeera.com/news/2020/04/stamping-misinformation-kenya-co….
- 4Abdi Latif Dahir, “Facebook is launching fact-checking tools in Africa – but WhatsApp is its real problem,” Quartz Africa, October 3, 2018, https://qz.com/africa/1411947/facebook-starts-africa-fact-checking-tool….
|Do conditions impede users’ ability to mobilize, form communities, and campaign, particularly on political and social issues?||6.006 6.006|
Online tools for civic mobilization are freely available to users, but the authorities’ suppression of some forms of digital dissent limits their effectiveness. Social media, especially Twitter, continues to be a critical platform for debate, advocacy, and mobilization on issues of public interest.
In May 2022, Twitter suspended 22 accounts of activists who had participated in the #njaaRevolution campaign, an online campaign protesting increasing food and commodity prices. Several suspended accounts were permanently suspended with no clear explanation on Twitter’s part. Civil society organizations voiced concerns that these suspensions constituted censorship during the critical preelectoral period.1
Kenyan users have also engaged in other hashtag campaigns, such as the #ProtectQueerKenyans and #JusticeForSheila campaigns which started after a member of the LGBT+ community was murdered in their home in April 2022.2
In May 2020, social media users organized around the hashtag #EndPoliceBrutalityKE, reporting and tracking police brutality in Kenya and pushing for accountability.3 This online mobilization resulted in physical protests.4 In the face of exceptionally high youth unemployment,5 Kenyans also use the hashtag #IkoKaziKE as a resource to find jobs and share hiring opportunities.
In early 2019, police in Mombasa launched an operation to arrest people for allegedly using social media to “incite” others against registering for the National Integrated Identity Management System (NIIMS), a biometric registration system.6
- 1Article19, “Kenya: Twitter must stop silencing human rights defenders”, https://www.article19.org/resources/kenya-twitter-stop-silencing-activi…
- 2Erin Kilbride, “Inadequate Kenyan police response to brutal killing of non binary lesbian”, Human Rights Watch, April 29, 2022, https://www.hrw.org/news/2022/04/29/inadequate-kenyan-police-response-b…
- 3Twitter, #EndPoliceBrutalityKE, https://twitter.com/hashtag/EndPoliceBrutalityKE; Instagram, #EndPoliceBrutalityKE, https://www.instagram.com/explore/tags/endpolicebrutalityke/
- 4Aljazeera, “Protestors march against Kenyan police brutality,” June 8, 2020, https://www.aljazeera.com/news/2020/06/protesters-march-kenyan-police-b….
- 5Patrick Alushula, “Census: 39pc of Kenyan youth unemployed,” February 24, 2020, https://www.businessdailyafrica.com/economy/39pc-of-Kenya-youth-are-une….
- 6Douglas Mwarua, “Police in Mombasa hunting for persons inciting locals not to register for Huduma Namba,” Tuko, https://www.tuko.co.ke/302650-police-mombasa-hunting-persons-inciting-l…
|Do the constitution or other laws fail to protect rights such as freedom of expression, access to information, and press freedom, including on the internet, and are they enforced by a judiciary that lacks independence?||4.004 6.006|
Freedom of expression is enshrined in Article 33 of the 2010 constitution and includes the rights to seek, receive, or impart information and ideas. However, these rights are frequently violated in practice, including for online journalists and other internet users.
The judiciary is relatively independent. In April 2022, the Supreme Court ruled that the constitutional review process advanced by President Kenyatta was unconstitutional. 1 Known as the Building Bridges Initiative (BBI), the proposal sought to expand the executive arm of the government and was widely understood as an attempt by Kenyatta and former prime minister Odinga to consolidate power at William Ruto’s expense. A High Court panel previously found that the BBI lacked public participation and could open Kenyatta to lawsuits in his personal capacity,2 though this decision was contested several times.3
In May 2021, during the previous coverage period, the High Court ruled that Section 66 of the penal code, which criminalized the publication of false information, violated the constitution (see C2).
In October 2020, the High Court invalidated 23 laws on the grounds that they were passed by the National Assembly, the lower house of the Parliament, without consultation from the Senate, the upper house, violating the constitution. The ruling ordered both chambers to consult on the 23 laws before July 2021; the deadline was later extended to November. The laws—which include provisions that infringe on the privacy of Kenyans (see C5)—remained in effect during the coverage period.4
Some high-profile rulings have failed to protect the fundamental rights of online journalists and ordinary users. The Bloggers Association of Kenya (BAKE), supported by rights group Article 19, filed a petition that led a court to temporarily suspend 26 sections of the Computer Misuse and Cybercrimes Act, 2018 (CMCA), before it came into effect in May 2018.5 In February 2020, however, High Court judge James Makau dismissed this petition and lifted the suspension of the sections, which prescribe hefty fines and prison sentences for a range of online activities including publishing false information and cyberharassment (see C2).6
- 1Brian Otieno, “BBI Verdict: Uhuru Raila camp vows fight is not over,” The Standard, April 1, 2022, https://www.standardmedia.co.ke/national/article/2001441931/bbi-verdict…
- 2Ferdinand Omondi, “Kenya's BBI blocked in scathing court verdict for President Kenyatta,” BBC News, May 14, 2021, https://www.bbc.com/news/world-africa-57094387
- 3Demas Kiprono, “Supreme Court decision on BBI will define Kenyas constitutional destiny,” The Standard, January 20, 2022, https://www.standardmedia.co.ke/opinion/article/2001435006/supreme-cour…
- 4Kevin Cheruiyot, “Uhuru's Huduma Namba in limbo after court nullified laws,” The Star, October 29, 2020, https://www.the-star.co.ke/news/2020-10-29-uhurus-huduma-namba-in-limbo…; Kamau Muthoni, “Court of Appeal gives Huduma Namba lifeline,” The Standard, July 27, 2021, https://www.standardmedia.co.ke/national/article/2001419363/court-of-ap….
- 5Wamathai, “Justice Chacha Mwita Suspends 26 Sections Of The Computer Misuse And Cybercrimes Act,” Bake, May 29, 2018, https://www.blog.bake.co.ke/2018/05/29/justice-chacha-mwita-suspends-26….
- 6Maureen Kakah, “Court dismissed bloggers’ cybercrime law case,” Daily Nation, March 18, 2020, https://www.nation.co.ke/news/Court-dismisses-bloggers-case-challenging…; Republic of Kenya, In the High Court of Kenya at Milimani (Nairobi), Constitutional & Human Rights Division, “Petition No. 206 of 2019,” http://kenyalaw.org/caselaw/cases/view/191276/.
|Are there laws that assign criminal penalties or civil liability for online activities, particularly those that are protected under international human rights standards?||2.002 4.004|
Laws on hate speech and defamation are frequently used to prosecute online critics of the government, though courts have occasionally invalidated such provisions on constitutional grounds.
In May 2021, the High Court invalidated Section 66 of the penal code, which barred the publication of false information, in response to charges brought against blogger Cyprian Nyakundi over controversial social media posts in 2018. The court found that the provision violated constitutional free-expression protections. Section 66 carried a penalty of up to three years’ imprisonment, a fine of up to 5 million shillings ($44,000), or both.1
The CMCA, which was adopted in May 2018 and subsequently challenged in court, threatens to further restrict freedom of expression online. According to the act, anyone 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 someone’s reputation can be sentenced to a fine of as much as 5 million shillings ($44,000) and up to 10 years in prison.2
Shortly after the law was promulgated, BAKE sued to overturn 26 problematic provisions,3 which were suspended until the court could hear the case (see C1).4 A High Court judge ultimately dismissed BAKE’s case in February 2020, ruling that the law does not violate freedom of expression and allowing the suspended provisions to take effect. Later that month, BAKE and the Law Society of Kenya appealed the High Court’s ruling to the Court of Appeal.5 This case has not yet been heard at the end of the coverage period.
In March 2021, a bill was introduced to Parliament proposing to amend the CMCA to prohibit the sharing of pornographic materials, with a penalty of a fine to 20 million shillings ($176,000), up to 25 years in prison, or both. The bill would ban any use of a computer to publish, produce, transmit, or store pornography.6
In February 2020, amid rising concern over COVID-19, government spokesperson Cyrus Oguna warned that those spreading false information related to the novel coronavirus on social media were being monitored and would face arrest under the cybercrimes act.7
In 2017, the High Court struck Section 132 of the penal code on constitutional grounds; the section criminalized “undermining the authority of public officers” and had been used to prosecute both online and offline speech.8 Section 29 of KICA was separately ruled unconstitutional in 2016.9 It had penalized bloggers and social media users for using ICTs to disseminate messages deemed “grossly offensive” or to cause “annoyance, inconvenience or needless anxiety to another person,” carrying a fine of up to 50,000 shillings ($440), three years in prison, or both.10
Hate speech is penalized under the NCIA, which was passed in response to widespread ethnic violence following the 2007 general elections.11 Individuals found guilty of spreading hate speech, broadly defined, can face a fine of up to 1 million shillings ($8,800), a prison term of up to three years, or both.
- 1Kamau Muthoni, “Telling rumours, publishing false statements is not criminal offence – Court,” The Standard, May 13, 2021, https://www.standardmedia.co.ke/national/article/2001412719/why-you-won…; Article 12, The Security Laws (Amendment) Act, 2014, Republic of Kenya, https://www.refworld.org/pdfid/4df202da2.pdf.
- 2National Council for Law Reporting, Republic of Kenya, Kenya Gazette Supplement, “The Computer Misuse and Cybercrimes Act, 2018,” May 16, 2018, http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/ComputerMisuseandCyb….
- 3Juliet Nanfuka, “Sections of Kenya’s Computer Misuse and Cybercrimes Act, 2018 Temporarily Suspended,” Collaboration on International ICT Policy for East and Southern Africa, May 30, 2018, https://cipesa.org/2018/05/sections-of-kenyas-computer-misuse-and-cyber….
- 4Christopher Tredger, “Bloggers gain upper hand in dispute over Kenya's cybercrime law,” IT Web Africa, October 4, 2018, http://www.itwebafrica.com/security/515-kenya/244939-bloggers-gain-uppe….
- 5Kiruti Itimu, “Court of Appeal Judges To Hear Application Against Controversial Computer Misuse Law,” Techweez, June 3, 2020, https://techweez.com/2020/06/03/judges-to-hear-application-computer-mis….
- 6Sam Ogina, “Bill seeks 25-year jail term or Ksh.20M fine for anyone who shares pornography,” Citizen Digital, March 1, 2021 https://citizentv.co.ke/news/bill-seeks-25-year-jail-term-or-ksh-20m-fi…; “The Computer Misuse and Cybercrimes (Amendment) Bill, 2021,” Kenya Gazette Supplement No. 64 (National Assembly Bills No. 11), Republic of Kenya, April 16, 2021, http://www.parliament.go.ke/sites/default/files/2021-05/Computer%20Misu….
- 7John Muchangi, “Coronavirus rumourmongers will be fined Sh5 Million – Oguna,” The Star, March 2, 2020, https://www.the-star.co.ke/news/2020-03-02-coronavirus-rumourmongers-wi….
- 8Republic of Kenya in the High Court of Nairobi Constitutional and Human Rights Division, “Petition No 174 of 2016,” accessed June 1, 2017, http://kenyalaw.org/caselaw/cases/view/135467/; Article 19, “Kenya: Win for freedom of expression as penal provision declared unconstitutional,” April 26, 2017, https://www.article19.org/resources/kenya-win-for-freedom-of-expression….
- 9Article 19, “Kenya: Win for freedom of expression as repressive law declared unconstitutional,” April 19, 2016, https://www.article19.org/resources/kenya-win-for-freedom-of-expression….
- 10Republic of Kenya National Council for Law Reporting, “The Kenya Information and Communications Act, chapter 411A,” 2009, https://www.researchictafrica.net/countries/kenya/The_Kenya_Information…; National Council for Law Reporting, Republic of Kenya, Kenya Gazette Supplement, “The Kenya Information and Communications (Amendment) Act, 2013,” December 18, 2013, http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2013/KenyaI….
- 11“Analysis: Taming hate speech in Kenya,” The New Humanitarian via Reliefweb, August 24, 2012, https://reliefweb.int/report/kenya/analysis-taming-hate-speech-kenya.
|Are individuals penalized for online activities, particularly those that are protected under international human rights standards?||4.004 6.006|
Score Change: This score improved from 3 to 4 because there were fewer reported arrests and prosecutions of individuals in retaliation for their online posts during the coverage period.
During the coverage period, individuals were arrested for publishing false information online. Arrests and prosecutions occurred less frequently compared to previous coverage periods.
In January 2022, a teacher was arrested and charged with cyberharassment and publishing false information after posting on Facebook that the head of the Teacher Service Commission was dead. 1 The status of his case was unknown at the end of the coverage period.
In August 2021, a businessman and his son were charged under the CMCA for saying that the brother of Mombasa’s governor hired individuals to carry out an attack in a social media post. Authorities alleged that the two knowingly published false information and that the information damaged the governor’s reputation.2
In August 2020, Charles Gichuki was arrested and released without charge for publishing a website that tallied the amount of money lost to corruption during the current regime’s tenure.3 The site has since gone offline, but an archived version still exists (see B2).4
In March 2021, then KFCB chairman Mutua ordered the arrest of comedian Eric Omondi and 15 cast members of Omondi’s YouTube show Wife Material. Omondi was charged with violating the Film and Stage Plays Act, which requires certification from the KFCB to exhibit or distribute films. Omondi and Mutua reached an out-of-court settlement over the charges. Omondi later removed the Wife Material videos from YouTube after Mutua demanded he do so (see B2).5
Controversial blogger Robert Alai was subjected to a gag order in April 2021, though he was not arrested. A health-care facility had initiated defamation proceedings against Alai after he posted on Twitter insinuating that the facility was used for organ trafficking.6 Previously, in March 2020, Alai had been charged with publishing false information after he posted on social media about alleged coronavirus deaths. He was released on bail after three days and ordered not to publish any more coronavirus-related information.7
- 1Annette Mwambulwa, “Teacher accused of publishing fake report about TSC boss charged,” January 24, 2022, The Star, https://www.the-star.co.ke/news/2022-01-24-teacher-accused-of-publishin…
- 2Brian Ocharo, “Kenya: Father, Son in Trouble Over Facebook Post On Governor Joho's Brother,” August 5, 2021, AllAfrica, https://allafrica.com/stories/202108050601.html
- 3@AmnestyKenya, “After a night of trending and detention at Capital Hill Station @kibee has been released without charges, his phone, laptop. He has been released and requested by @DCU to return on Friday. Thank you to @NelsonHavi @katibainstitute for rallying to repp him. #ReleaseChaosKibe,” Twitter, August 21, 2020, https://twitter.com/AmnestyKenya/status/1296689559854624768.
- 4“The Corruption Tracker,” August 20, 2020 (archive), https://web.archive.org/web/20200820144442/https://uhuru.surge.sh.
- 5Keshi Ndirangu, “Wife Material will be back in two weeks – Eric Omondi,” Nairobi News, March 21, 2021, https://nairobinews.nation.co.ke/featured/wife-material-will-be-back-in…; “ Kenya: Don’t use the censorship law to prosecute comedian Eric Omondi,” ARTICLE19, March 12, 2021, https://www.article19.org/resources/kenya-dont-use-the-censorship-law-t….
- 6“Robert Alai barred from publishing defamatory articles against Mediheal hospital,” Citizen Digital, April 8, 2021, https://citizentv.co.ke/news/robert-alai-barred-from-publishing-defamat…,
- 7Joseph Wangui, “Blogger Alai charged over ‘alarming’ coronavirus post,” Daily Nation, March 23, 2020, https://www.nation.co.ke/news/Alai-faces-court-over-Covid-19-post/1056-…; Japheth Ogila, “Blogger Robert Ali freed on Sh50,000 cash bail over Covid-19 post,” Standard Media Digital, March 23, 2020, https://www.standardmedia.co.ke/article/2001365322/blogger-alai-freed-o….
|Does the government place restrictions on anonymous communication or encryption?||3.003 4.004|
Kenyans can freely use encryption tools, but a number of regulations and monitoring systems limit anonymous communication. Several publications and technology blogs often encourage Kenyans to install encryption tools.
Anonymity is compromised by the expanding scope of mandatory SIM-card registration and efforts to track the illicit sale of mobile phones. In March 2022, the CA announced that all unregistered SIM cards would be deactivated by April 2022, and urged individuals with SIM cards more than 10 years old to reregister. 1 During the reregistration process, authorities have been collecting pictures of identification documents,2 even though this is not required under the Registration of SIM Cards Regulation, 2015.3 In addition, individuals under the age of 18 are required to present a copy of their birth certificate to register their SIM cards.4 The government stated that those in possession of unregistered SIM cards would face fines of up to 300,000 shillings ($2,650), a six month prison sentence, or both.5 The deadline for registration was later pushed to October 2022.6
In April 2020, the Court of Appeal permitted the government to implement the Device Management System (DMS), a mechanism for identifying counterfeit and illegal phones.7 In June 2020, the Law Society of Kenya appealed the case to the Supreme Court, over concerns that the DMS, which gives the CA access to mobile subscriber data including call records, would infringe on subscribers’ right to privacy.8
In 2017, Safaricom began keeping records of anyone registering for or renewing a SIM card.9 This was in compliance with existing SIM-card registration requirement.10 The regulations also grant the communications regulator access to service providers’ offices and records without a court order, raising concerns about the lack of judicial oversight.11
- 1Victor Amadala, “CA to switch off unregistered sim cards by April 15,” The Star, March 7, 2022, https://www.the-star.co.ke/business/kenya/2022-03-07-ca-to-switch-off-u…
- 2Nanjira Sambuli, @ninanjira, “Update: They’re taking pics (including of our ID) to oblige @CA_Kenya. In-store agents with whom I spoke also don’t know the specifics. So over to the regulator, what’s all this about?,” Twitter, November 29, 2021, https://twitter.com/NiNanjira/status/1465262822967975942?s=20&t=AEmCI41…
- 3Communications Authority, “Registration of SIM Cards Regulations”, https://www.ca.go.ke/wp-content/uploads/2018/02/Registration-of-SIM-%E2…, 14 August, 2015
- 4Mumbi Mutuko, “Sim card registration all you need to know,” Kenyans.co.ke, April 8, 2022, https://www.kenyans.co.ke/news/74658-sim-card-registration-all-you-need…
- 5Geoffrey Lutta, “Chiloba sets cash penalty for Kenyans who won’t register sim cards,” Kenyans.co.ke, April 7, 2022, https://www.kenyans.co.ke/news/74617-chiloba-sets-cash-penalty-kenyans-…
- 6Peter Mburu, “CA extends sim card registration deadline,” Nation, April 15, 2022, https://nation.africa/kenya/business/ca-extends-sim-card-registration-d…
- 7Nelson Havi, “Devil is in the detail on phone privacy ruling,” The Standard, April 28, 2020, https://www.standardmedia.co.ke/business/article/2001369322/devil-is-in….
- 8Columbia University: Global Freedom of Expression, “Okoiti v. Communications Authority of Kenya,” https://globalfreedomofexpression.columbia.edu/cases/okoiti-v-communica…; Kenn Abuya, “Law Society of Kenya Seeks to Stop Installation of Spying Tool by State,” Techweez, June 10, 2020, https://techweez.com/2020/06/10/lsk-ca-kenya-dms-case/.
- 9Interview with Safaricom agents in Nairobi, May 2017.
- 10Kenya Gazette Supplement No. 137, Kenya Information and Communications (Registration Of SIM-Cards) Regulations, August 14, 2015, http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/163-Kenya_In….
- 11Section 13. “A licensee shall grant the Commission’s officers access to its systems, premises, facilities, files, records and other data to enable the Commission inspect such systems, premises, facilities, files, records and other data for compliance with the Act and these Regulations.” The Kenya Information and Communications (Amendment) Act, 2013, https://www.mediacouncil.or.ke/en/mck/index.php/publications/media-laws….
|Does state surveillance of internet activities infringe on users’ right to privacy?||2.002 6.006|
Article 31 of the 2010 constitution provides for the right to privacy. However, authorities surveil of internet activities under laws that enable them to search and seize data on national security grounds, directly infringing users’ privacy rights. The Data Protection Act, 2019 (DPA), passed that November, leaves room for officials to continue to bypass user consent and access private data for national security reasons (see C6).
In December 2020, the president signed a law that amended the Official Secrets Act, 1968 (OSA) to require “any person who owns or controls any telecommunications apparatus used for the sending or receipt of any data to or from any place outside Kenya” to provide such data to the government. Such requests may be authorized by the president’s cabinet security, rather than through the courts. Those who refuse risk a one-year prison term, a fine of 1 million shillings ($8,800), or both.1 The law was one of the 23 invalidated in October 2020 for unconstitutional procedure; it remains in effect pending Parliament’s consultation to correct the procedure by which it passed, which continued during the coverage period (see C1).
During the 2017 election, officials at the electoral commission allegedly exploited their access to voters’ data—including information such as phone numbers, identification numbers, and photos—and sold them to politicians, who then targeted the voters with campaign messages in the run-up to the polls.2
In January 2020, a High Court ruling barred the government from proceeding with the implementation of NIIMS, a biometric registration system, until it developed a comprehensive regulatory framework. The court also prohibited the collection of genetic and satellite-based location data under NIIMS, finding that such collection violates Article 31 of the constitution.3
Despite the ruling, registration activities for the biometric identification cards, better known as Huduma Namba cards, continued throughout the coverage period.4 The law authorizing NIIMS was one of the 23 invalidated in October 2020 for unconstitutional procedure; it remains in effect pending Parliament’s consultation to correct the procedural defect (see C1).
Section 48 of the CMCA allows the authorities to search and seize stored computer data and to collect and intercept data in real time.5
KICA prohibits many forms of monitoring and interception of communications,6 though the Prevention of Terrorism Act, 2012 (PTA) allows the authorities to limit constitutional freedoms, such as the right to privacy, during investigations into terrorism.7 Amendments to the PTA in 2014 explicitly enabled national security bodies to intercept communications “for the purposes of detecting, deterring, and disrupting terrorism,”8 though this must be authorized through an interception order from the High Court.9
Independent research in recent years has revealed various surveillance technologies that authorities or other actors may employ to monitor citizens. A December 2020 investigation by Citizen Lab identified the Kenyan government as a likely customer of Circles, a surveillance company. Circles products allow customers to monitor calls, texts, and cell phone geolocation by exploiting weaknesses in mobile telecommunications infrastructure.10
Evidence of unlawful or disproportionate state surveillance has emerged in recent years. According to 2018 research published by Citizen Lab, Kenya is one of 45 countries worldwide where the use of Pegasus, a surveillance software tool developed by the Israeli technology firm NSO Group, has been detected. The spyware has targeted customers of Safaricom and Simbanet, and it is known to be used by governments elsewhere to intrusively monitor journalists, HRDs, and political opponents.11
In 2017, research published by the Centre for Intellectual Property and Information Technology Law (CIPIT) revealed the presence of a “middlebox” on a Safaricom mobile network.12 While middleboxes have legitimate functions, such as network optimization, they can also be used to manipulate traffic and assist in surveillance, which led to concerns about potential privacy violations. Safaricom denied using a middlebox, and subsequent tests returned negative results, prompting the researchers to conclude that the technology was no longer in use.
The UK-based nonprofit organization Privacy International (PI) separately revealed in a 2017 report that Kenyan national security agencies, especially the National Intelligence Service (NIS), have unlawful direct access to communications systems, allowing for the interception of both traffic data and content.13 Based on interviews, PI found that law enforcement and national security agents have a physical presence in the facilities of telecommunications providers. The report also indicated that intercepted information could be freely shared with other government agencies.
PI also assessed two NIS cybersecurity projects, the Network Early Warning System and the National Intrusion Detection and Prevention System, which aim to monitor telecommunications traffic for cybersecurity threats. PI raised concerns that the two systems could monitor content as well as traffic, based on internal documents it received.14 Given the national security framework in which the systems are being implemented, transparency and oversight will be limited.
- 1The Statute Law (Miscellaneous Amendments) Bill, 2020, Kenya Gazette Supplmenet No. 89 (National Assembly Bills No. 15), Parliament of Kenya, http://www.parliament.go.ke/index.php/node/12423; Emmanuel Paul, “Kenyan government takes another shot at infringing privacy and digital rights,” Techpoint Africa, December 17th 2020, https://techpoint.africa/2020/12/17/kenya-private-data/
- 2Brian Wasuna, “How rogue IEBC staff minted cash from sale of voters’ data,” The Star, May 10, 2018, https://www.the-star.co.ke/news/2018-05-10-how-rogue-iebc-staff-minted-….
- 3Republic of Kenya in the High Court of Nairobi Constitutional & Judicial Review Division, “Consolidated Petitions No 56, 58 & 59 of 2019,” http://kenyalaw.org/caselaw/cases/view/189189/; Privacy International, “Kenyan Court Ruling on Huduma Namba Identity System: the Good, the Bad and the Lessons,” February 24, 2020, https://privacyinternational.org/long-read/3373/kenyan-court-ruling-hud….
- 4Margaret Kalekye, “Kenyans advised not to snub Huduma Namba messages,” KBC, March 16, 2021, https://www.kbc.co.ke/kenyans-advised-not-to-snub-huduma-namba-messages/
- 5National Council for Law Reporting, Republic of Kenya, Kenya Gazette Supplement, “The Computer Misuse and Cybercrimes Act, 2018,” http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/ComputerMisuseandCyb…
- 6National Council for Law Reporting, “Kenya Information and Communications Act, Article 31,” http://admin.theiguides.org/Media/Documents/Kenya%20Information%20Commu…
- 7Government of Kenya Financial Reporting Centre, Acts and Regulations Downloads, see Prevention of Terrorism Act 2012, article 35, http://frc.go.ke/downloads/category/2-acts-and-regulations.html.
- 8The Republic of Kenya, “Prevention of Terrorism Act No. 30 of 2012,” http://www.vertic.org/media/National%20Legislation/Kenya/KE_Prevention_….
- 9National Council for Law Reporting, Republic of Kenya, Kenya Gazette Supplement, “The Security Laws (Amendment) Act, 2014,” December 22, 2014, http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2014/Securi….
- 10Bill Marczak, John Scott-Railton, Siddharth Prakash Rao1, Siena Anstis, and Ron Deibert, “Running in Circles, The Citizen Lab, December 1, 2020, https://citizenlab.ca/2020/12/running-in-circles-uncovering-the-clients….
- 11Bill Marczak, John Scott-Railton, Sarah McKune, Bahr Abdul Razzak, and Ron Deibert, “Hide And Seek: Tracking NSO Group’s Pegasus Spyware To Operations In 45 Countries,” The Citizen Lab, September 18, 2018, https://citizenlab.ca/2018/09/hide-and-seek-tracking-nso-groups-pegasus….
- 12Moses Karanja, “CIPIT Research Reveals Evidence of Internet Traffic Tampering in Kenya: The Case of Safaricom’s Network,” CIPIT, March 23, 2017, https://cipit.strathmore.edu/cipit-research-reveals-evidence-of-interne….
- 13Privacy International, “Trace, Capture, Kill: Inside Communication Surveillance and Counterterrorism in Kenya.” March 15, 2017, https://privacyinternational.org/report/43/track-capture-kill-inside-co….
- 14Privacy International, “Trace, Capture, Kill: Inside Communication Surveillance and Counterterrorism in Kenya.” March 15, 2017 https://privacyinternational.org/report/43/track-capture-kill-inside-co…; According to the report, Traffic monitoring projects (Network Early Warning System and National intrusion Detection and Prevention Systems have been detailed as enabling not just monitoring but deep inspection of all Internet traffic coming through the country.
|Does monitoring and collection of user data by service providers and other technology companies infringe on users’ right to privacy?||4.004 6.006|
Service providers and other technology companies are not usually required to aid the government in monitoring the communications of their users, although authorities have reportedly made requests for such assistance. A data protection law passed in November 2019 offers safeguards for user data but includes broad exemptions that allow the government to sidestep the protections, endangering the right to privacy.
The DPA regulates the collection, processing, storage, use, and disclosure of information relating to individuals.1 Processing that is “necessary for national security or public interest” is broadly exempted from the law’s protections, opening the door to government abuse. The law establishes the Office of the Data Commissioner to oversee implementation, but the entity has not been classified as an independent office under the constitution, raising concerns about its autonomy.2
The Data Protection (General) Regulations, 2021, passed in February 2022, operationalize the DPA and set out procedural guidelines for data controllers and data processors. Under the regulations, data controllers and data processors are required to ensure users give consent for their personal data to be used and to process personal data through servers located in Kenya.3 Draft regulations to implement the DPA, including the Data Protection (General) Regulations, 2021, were previously criticized for inadequately protecting the rights of data subjects and not exempting data processing for journalistic purposes.4
In October 2020, Immaculate Kassait, a former IEBC commissioner, was made Kenya’s first data commissioner.5
Other laws, like the Preservation of Public Security Act; the OSA; the National Intelligence Act, 2012; and the PTA limit the privacy of personal data, ostensibly to safeguard national security.6
PI has reported that Safaricom routinely supplies data to authorities without a warrant for intelligence purposes. Safaricom claims that it only cooperates when authorities present a court order.7
In May 2022, the Kenya Review Authority announced that it planned to purchase a software that could scan through data in emails, computers, smartphones, and social media accounts to combat tax and financial fraud.8 Kenyans have protested, saying that the KRA’s monitoring would be intrusive and unconstitutional.
- 1National Council for Law Reporting, Republic of Kenya, Kenya Gazette Supplement, “The Data Protection Act, 2019,” November 11, 2019, http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/2019/TheDataProtecti….
- 2Privacy International, “Analysis of Kenya’s Data Protection Act, 2019,” January 2020, https://privacyinternational.org/sites/default/files/2020-02/Analysis%2….
- 3“The Coming Into Force of Various Data Protection Regulations and What You Need To Know,” March 22, 2022; https://www.oraro.co.ke/2022/03/22/data-protection-the-coming-into-forc…; “Implementation of Kenya’s Data Protection General Regulations 2021,” https://www.mondaq.com/data-protection/1167070/implementation-of-kenya3…
- 4“Kenya: Amend the Draft Data Protection Regulations,” ARTICLE 19 Eastern Africa, July 29, 2021, https://www.article19.org/resources/kenya-amend-draft-data-regulations-….
- 5Sam Kiplagat, “Immaculate Kassait: Election specialist turned data police,” Business Daily, November 20, 2020, https://www.businessdailyafrica.com/bd/lifestyle/profiles/immaculate-ka….
- 6Association for Progressive Communications, “Policy Brief: Data Protection in Kenya,” https://www.apc.org/sites/default/files/Data_protection_in_Kenya_1.pdf.
- 7Privacy International, “Trace, Capture, Kill: Inside Communication Surveillance and Counterterrorism in Kenya.” March 15, 2017 https://privacyinternational.org/report/43/track-capture-kill-inside-co….
- 8“Kenyans are protesting plans by tax authority to snoop on their online chats,” Quartz Africa, May 12, 2022, https://qz.com/africa/2164861/kenyas-tax-authority-to-snoop-on-online-c…
|Are individuals subject to extralegal intimidation or physical violence by state authorities or any other actor in relation to their online activities?||3.003 5.005|
Bloggers and internet users have faced increasing intimidation and violence in retaliation for their online activities in recent years.
In October 2021, Boniface Mwangi accused Machakos governor Alfred Mutua of ordering the bombing of his under-construction house. Mwangi alleged he was targeted in retaliation for his social media posts about Governor Mutua’s personal separation from Lillian Ng’ang’a. Mutua subsequently threatened to sue Mwangi for defamation.1
In November 2020, blogger Edgar Obare accused Kenyan police of kidnapping and assaulting him while he was traveling to a hearing; Obare faced charges of unlawfully disclosing personal information online (see C3).2
More than a quarter of Kenyan women have experienced some form of online gender-based violence, according to an August 2020 report from Pollicy, a technology consulting firm.3 In April 2020, Brenda Cherotich, one of the first Kenyans to be publicly identified as a person who recovered from COVID-19, faced extensive online harassment, including the nonconsensual sharing of her private chats and photos.4 Women in politics encountered especially harsh online harassment during the pandemic, according to a brief from the Kenya ICT Action Network (KICTANet).5
During the restive 2017 election period, authorities often destroyed the cameras and phones of journalists to suppress reporting on violence and human rights violations.6 The heightened political tensions also led to more instances of intimidation and harassment in retaliation for online activities. Female candidates faced rampant online harassment ment to deter their political ambitions,7 which was often accompanied by offline sexual harassment and violence.8
Ordinary users can face retaliation for online activity that impacts their livelihoods. In February 2019, the Machakos county government suspended Alice Kasyoka from practicing medicine after she criticized county officials in a Facebook post. During her suspension, Kasyoka was paid half of her salary.9
- 1John Osoro, “Governor Mutua threatens to sue activist Boniface Mwangi for defamation,” October 21, 2021, Capital News, https://www.capitalfm.co.ke/news/2021/10/governor-mutua-threatens-to-su…
- 2“Kenyans react as Edgar Obare accuses police of kidnap, brutality.” Standard Media, https://www.standardmedia.co.ke/entertainment/showbiz/2001392522/kenyan…
- 3Neema Iyer, Bonnita Nyamwire, and Sandra Nabulega, “Alternate Realities, Alternate Internets,” Pollicy, August 2020, https://ogbv.pollicy.org/report.pdf
- 4Cecilia Maundu, “Online violence in times of covid-19,” KICTAMet, May 29, 2020, https://www.apc.org/en/news/kictanet-online-gender-based-violence-times…; Basillio Mutahi, “Kenyan nurse: 'I was shunned over coronavirus fears,'” BBC News, May 12, 2020, https://www.bbc.com/news/world-africa-52630804.
- 5Mwara Gichanga and Liz Orembo, “Trends of Online Violence against Women in Politics During the COVID19 Pandemic in Kenya,” KICTANet, June 2, 2020 https://www.kictanet.or.ke/mdocs-posts/trends-of-online-violence-agains….
- 6Human Rights Watch, ““Kill Those Criminals” Security Forces Violations in Kenya’s August 2017 Elections,” October 15, 2017 https://www.hrw.org/report/2017/10/15/kill-those-criminals/security-for…
- 7Njeri Wangari, “Political Cyber bullying of Women Aspirants in 2017 Kenyan Election,” AfroMum, August 14, 2017 http://www.afromum.com/political-cyber-bullying-women-aspirants-2017-ke…
- 8Daily Nation, “What female politicians go through in quest to ascend to power,” May 29, 2017 https://www.nation.co.ke/news/politics/kenya-female-politics/1064-39471…
- 9Lolyne Ongeri, “Machakos County Government Interdicts Dr Alice Kasyoka For Allegedly Publishing Derogatory Post on Facebook,” iFreedoms Kenya, March 4, 2019 https://www.ifree.co.ke/2019/03/machakos-county-government-interdicts-d… ; Kahawa Tungu, “Governor Alfred Mutua Wants Machakos Doctor Dismissed for Criticising him through Social Media,” February 28, 2019 https://www.kahawatungu.com/2019/02/28/governor-alfred-mutua-wants-mach…
|Are websites, governmental and private entities, service providers, or individual users subject to widespread hacking and other forms of cyberattack?||3.003 3.003|
Score Change: This score improved from 2 to 3 because there were no reported technical attacks against government or media organizations during the coverage period.
Hacking and other forms of cyberattack are a growing problem in Kenya. The National Computer Incident Response Team detected 143 million cyberthreats between July and September 2021, up from 35.2 million during the previous year.1 However, no technical attacks were reported against government or media bodies during this report’s coverage period.
In June 2022, after the coverage period, Kaspersky Lab reported on SessionManager, a backdoor that was used to target nongovernmental organizations, government entities, medical firms, and transportation companies. Kaspersky experts found that the backdoor had been used in Kenya, though its targets were not identified.2
Since 2015, Kenya has been subjected to scores of cyberattacks, many of which were directed at financial institutions. For instance, in October 2020, two students were charged with allegedly stealing 24.4 million shillings ($244,000) by hacking a bank’s mobile money platform.3
Under the CMCA, hackers face a fine of up to 5 million shillings ($44,000), up to three years in prison, or both for: unauthorized access to, interference with, or interception of data on computer systems; unauthorized disclosure of passwords; and cyberespionage, among other offenses.4
- 1Communications Authority of Kenya, Quarterly Sector Statistics Report: Q1 FY 2021/2022 (July-September 2021), https://www.ca.go.ke/wp-content/uploads/2021/12/Sector-Statististics-Re…
- 2“Kaspersky discovers a new backdoor targeting governments and NGOs across the Middle East, Turkey, and Africa,” Africa Tech, July 4, 2022, https://africabusinesscommunities.com/tech/tech-news/kaspersky-discover…
- 3Richard Mutungi, “JKUAT students charged with Sh24.4 million bank theft,” Business Daily, October 27, 2020, https://www.businessdailyafrica.com/bd/economy/jkuat-students-sh24-4-mi….
- 4National Council for Law Reporting, Republic of Kenya, Kenya Gazette Supplement, “The Computer Misuse and Cybercrimes Act, 2018,” Section 14, May 16, 2018, http://www.kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/ComputerMisusean….
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Global Freedom Score48 100 partly free
Internet Freedom Score68 100 partly free
Freedom in the World StatusPartly Free