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CCK lacks legal backing for SMS and Internet monitoring, Information ministry admits

The Kenyan Ministry of Information and Communication has said that actions by the Communications Commission of Kenya (CCK), the Kenya Police and the National Cohesion and Integration Commission (NCIC) to monitor SMS text messages and the Internet could violate the right to privacy in Kenya.

The ministry explained this to HumanIPO days after a Nairobi lawyer pointed out that the current law is lacking.

According to Mary Ombara, the director of public communications and secretary of the National Steering Committee on Media Monitoring, the current law does not provide for monitoring of “new media” such as Internet and SMS, as earlier reported.

“There are no specific regulations towards this but we have been using the constitutional clause that provides for us to take action where there is indication of hate speech or incitement,” Ombara said.

She says that the CCK has been forced to rely on the The National Cohesion and Integration Act 2008, which addresses issues such as hate speech, as the government has noted increased usage of the Internet by bloggers to spread hate speech.

“Internet is an area that is new for us and we are working with other regions to find out the areas Kenya can imitate from, or come up with a common regional internet law regulation. We also know that the NCIC Act does have provisions for hate speech though it does not provide the media,” she said.

According to the National Cohesion and Integration Act, ‘a person who- uses threatening, insulting words or behavior, displays or publishes any written material that is threatening commits an offence. If such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.’

Ombara explained that a number of bloggers who have been caught perpetrating hate speech are due for prosecution and that the ministry is working with the office of the director of public prosecution.

Despite the lack of a legal backing, says Ombara, the ministry has been forced to go ahead and attempt to prevent a repeat of the 2008 post election violence, that saw SMS especially being used.

“As a country and as a government we cannot allow the conditions to regenerate to what they were in 2007, it is really a matter of being sensible as a government,” she said, adding that the ministry is working on the Independent Communications Commission of Kenya Act, which will include new forms of media such as social media.

This comes as the National Steering Committee on Media Monitoring in its bi-monthly briefing noted the increase of the use of coded messages and heavy vernacular dialect by politicians on realisations that they are being monitored.

According to NCIC commissioner Milly Mwanga, the commission will release a report after completing research on usage of coded messages, signs and gestures, to be distributed to its officers monitoring the situation on the ground.

“We have completed that study and this will strengthen our ability to deal with hate speech and incitement,” Mwanga said.

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