Proposed Bill on Social Media Regulation is Unconstitutional: ICT Committee Parliament

Kenya's Proposed Law Requiring Clearance of WhatsApp, Facebook Admins Raises Concerns

Kenya National Assembly Information, Communication, and Innovation Committee on Monday declared unconstitutional a proposed regulation on social media as it offends the Constitution.

William Kisang, chairman of the committee termed the proposed Kenya Information and Communication (Amendment) Bill (National Assembly Bill Number 61) as ‘offensive to the constitution’.

“Basically we are saying that the Bill will be thrown out soon. We will do a report to the House (National Assembly) and report that it goes against freedom of speech,  privacy, and freedom of belief and opinion as enshrined in the Constitution,” said Kisang after the conclusion of Public hearings on the KICA Bill in Nairobi.

However, he urged social media users to use the platforms responsibly.

“I tend to think that this Bill is unconstitutional because it violates the right to expression and privacy. I don’t think the committee would be proceeding in the right direction by discussing something unconstitutional,” said  Nominated MP Godfrey Osotsi.

The main objective of the Bill sponsored by Malava MP Moses Injendi seeks to amend the Act to provide for the regulation of the use of social media platforms.

The Bill has already gone through the First Reading. 

Organizations that submitted their memoranda on the proposed bill include The Kenya Union of Journalists jointly with the Bloggers Association of Kenya,  Lawyers Hub Kenya, the Kenya ICT Action Network, and Amnesty International Kenya whose proposals called for the total rejection of the bill.

According to KUJ and BAKE, The entire KICA Amendment Bill is unconstitutional and untenable. 

“Parliament should reject it in its entirety as it makes nonsense of the long struggle for democracy that the Country has gone through. It also makes it difficult for people to enjoy the fruits of the advancement of technology. Ultimately, it makes the life of technology users sad and cumbersome,” reads part of the memorandum.

KICTaNet submitted that the Bill needs to be withdrawn as it will have devasting ramifications on the Sovereignty of the people, the Supremacy of the Constitution and democracy.

“It goes against the Constitution of Kenya, 200 under Article 31 which guarantees the right to privacy, Article 32 which guarantees the freedom of belief and opinion, Article 33 that guarantees the freedom of expression, Article 34 that gives the people freedom of the media and lastly Article 35 that guaranteed us the access to information,” read part of the memorandum.

“These freedoms go to the root of our democracy. Once the government is allowed to chip away at these freedoms, we ill quickly cease to become a democratic state.”

In addition, Amnesty International Kenya  in its submission said the Bill, “Fails to consider the importance of freedom of expression in a democracy and the great strides that Kenya has made towards freedom of expression.”

“KICA is not supposed to deal with content, it’s supposed to deal with systems. This is a retrogressive bill that undermines freedom of speech and thought,” said Demas Kiprono, Constitutional & Human Rights Lawyer at Amnesty International Kenya. 

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Commentary

“The members heard us and assured us that it will not see the light of day. That is an affront to our democracy. Social media is a medium for free expression that allows freedom of expression, right to protest and right to privacy. We are confident that members of this committee will do as needed. We are also glad that stakeholders came out to unanimously oppose this bill including the Communications Authority of Kenya,”  Demas Kiprono.

“The committee has made the right decision acknowledging the public that the bill is dead on arrival which was the publics’ sentiments. And a further call to the National Assembly to ensure that Bills before they are brought to the committees, go through a scrutiny process to assess whether they are constitutional or not. So that people are not engaged in similar processes where you know that at the end of the day they will be declared unconstitutional by the court,” Victor Kapiyo, Partner  Lawmark Partners LLP and Trustee at KICTANet.