A few weeks ago, the Kenya Information and Communication Amendment Bill 2019 was published. The Bill sponsored by Hon. Injendi proposes to regulate blogging and social media use in Kenya. The Bill seeks the registration of bloggers or as it puts it to license any person who wishes to establish a social media platform. For one to be granted this license, they must have a physical office, register all users of the platform, keep all data of users of the platform and submit them to the Commission and ensure that all persons using the platform are of the age of majority. Further, a licensee is required to preserve and share information of users of the platform plus regulate and moderate content and users of the said social media platform. Any person who contravenes these unreasonable provisions faces a fine of two hundred thousand shillings or imprisonment for one year. The Bill also seeks to establish a register of bloggers and provides that any person who blogs without a license commits an offence and liable to a penalty of five hundred thousand shillings or a two-year jail term.

The Bill defines a social media platform to include online publishing and discussion, media sharing, social networking, document and data sharing repositories, social media applications, social bookmarking and widgets. Just from the definition of social media, the Bill is shooting in the dark.

To analyse this Bill we have to bear in mind how Kenyans use social media. One example is of a whatsapp group created to raise funds for medical expenses. What this Bill proposes is to have any person who wishes to create such a group to go to the Communication Authority of Kenya and seek a license to create this group. Secondly, the person must have a physical office and provide the names of all persons who will be in the whatsaapp group. The creator of the group will also be required to collect all the data of the users in the group. Failure to do all this, the creator will face hefty fines a jail term for creating a whatsapp group to raise funds for medical expenses.

It is hilarious that the Bill is sponsored by a Member of Parliament who would need to campaign say in 2022. So, this MP will have to get licenses to register his social media pages including whatsapp, Facebook, YouTube and Twitter.

Looking at how fluid the number of users of social media platforms are, how would the creator of a group determine who the users are? For a whatsapp group of a members of staff of any establishment, they would need new licenses once an employee resigns or one is hired? What about people who have thousands of followers on platforms like Instagram, Facebook and Twitter? How do they even present a list of the users on their pages?

Back to the whatsapp group for medical expenses, it would be impossible to get an accurate number of members of the group since people join and leave such groups at will and without notice. What this means is that Kenyans would have to do away with social media initiatives to raise funds for medical expenses, education, funeral, political campaigns etc.

My guess is that the State through this privately sponsored Bill is not happy with the criticism, whistleblowing and scrutiny that happens on social media. I mean, even the President deactivated his social media accounts. I believe he could not handle the heat from Kenyans taking him to task for the rampant corruption, broken promises and the fecklessness his government exhibits.

Unfortunately, what the sponsors of this Bill do not realise is that social media is not just used to hold state and public officials accountable for their actions or omissions. Social media is in fact used in all sectors of the economy to provide information, for customer care, public participation and as a source of income for a large number of Kenyans especially the youth. In essence, what the Bill seeks to do is kill the livelihoods of tens of thousands of young Kenyans who have monetised their use of social media; so much for fostering a conducive business environment or creating employment for the youth. I wonder how the registration of the ‘36 bloggers’ would go….

The Bill also expects administrators of social media platforms to collect data on users and police content. Surely??? How is this even possible?? While I agree that administrators may put in place mechanisms to pull down illegal content, this is shifting policing responsibility from the State to private individuals. Further, having administrators store and share data of members is against the right to privacy. Perhaps, this is why the State has for years been reluctant to have privacy and data protection statutes.

This year the government published the Kenya Digital Economy Blueprint with a vision of a digitally empowered citizenry, living in a digitally enabled society and a mission to have a nation where every citizen, enterprise and organization has digital access and the capability to participate and thrive in the digital economy. In the forward to this Blueprint, the President wrote –

“As digital technologies become the cornerstone of our daily activities, Governments, businesses and individuals must adapt to this new reality. Kenya has embarked on its digital transformation journey, to ensure that the digital economy benefits become our reality and it is our hope that all of Africa will walk this journey too.”

“This Digital Economy Blueprint serves as one of Kenya’s contributions in championing the growth of an African-wide digital economy for all of Smart Africa Alliance members. It is our hope and wish that all the member states shall peruse this Blueprint and find value in adapting it within their own ecosystems to realize the potential of digital transformation that will leapfrog our economies to prosperous heights.”

The five pillars of the digital economy are digital government, digital business, infrastructure, innovation driven entrepreneurship and digital skills and values. The same government that wants Kenya’s digital economy to develop is now seeking to obliterate one of the core enablers of a digital economy – social media.

Any State that moves against social media use in such unconstitutional fashion is just hurtling towards authoritarianism. Kenyan courts have stated severally that the State cannot without reasonable cause and within our constitutional democracy limit the freedoms to free speech, free press and access to information among other rights. The Bill if enacted into law will unreasonably limit these rights.

While I hope Parliament will treat the Bill with the contempt it deserves, the publication of the Bill is just another exhibit of the States unrelenting attempts to stifle innovation, kill businesses, ensure the youth remain unemployed, limit free speech and free press and ignore the need for privacy and data protection.