MOI UNIVERSITY

SCHOOL OF LAW

FLB 400: RESEARCH PAPER

BLOGGING AND THE FREEDOM OF EXPRESSION: REGULATION IN THE

KENYAN LEGAL SYSTEM

BY:

ABUYA METHUSELLAH MOGENDI

LLB/69/10

A PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENT

FOR THE AWARD OF A BACHELORS OF LAW DEGREE OF MOI UNIVERSITY

SUPERVISED BY

MS. IRENE MAITHYA

JULY, 2016

1
 DECLARATION

I, ABUYA MOGENDI METHUSELLAH, do hereby declare that Blogging and the Freedom

of Expression: Regulation in the Kenyan Legal System is my original work and has not been

submitted for any degree or examination in any other university or institution of higher

learning. While I have relied on numerous sources and materials to develop the main

argument presented in this research paper, all the materials and sources used have been duly

and properly acknowledged.

Supervisee: Abuya Mogendi M.

Signed..

Date.

Supervisor: Ms. Irene Maithya

Signature.

Date

i
 DEDICATION

This research paper is heartily dedicated to Denis Ole Itumbi, a blogger and Director of

Digital Communication in the office of the President of the Republic of Kenya; and Robert

Alai, a prolific blogger and a fierce critic of the Jubilee Government.

ii
 ACKNOWLEDGEMENT

It is often said, writing is a jealous mistress who demands undivided attention. Every line in

this dissertation represents a sacrifice on the altar of time and resources by various actors to

whom I will forever remain indebted:

The staff of Moi University-School of Law Library, especially Madam Agnes of the

Reference Section, has been very obliging with my importunate demands. I cant thank them

enough!

My friend Nelima has been such a help during the authorship of this paper. I cant help but

thank her for her pain and trouble too. God bless you buddy!

In the vastness of space and immensity of time, it is my joy to be spending a planet and an

epoch with Lilian Olivia! Throughout this writing, I found her to be a delightful, insightful

and keen companion. I thank her for her support, patience and encouragement as I carved out

precious hours to complete this dissertation.

Special thanks to my parents (Mr. and Mrs. Abuya) and my siblings (Zipporah, Sylvia, Ednah

and Enock) for their support and encouragement monetarily, emotionally, spiritually and

physically. They are the wind under my wings. I cant have a better family!

I am immensely indebted to my supervisor, Ms. Irene Maithya, who read through the whole

typescript and made insightful comments upon each chapter which were key to the

completion of this paper.

Above all, I thank the Almighty God, for I was able to do all these through Him who gave me

strength!

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 LIST OF ABBREVIATIONS

ECHR- European Convention of Human Rights

ICCPR- International Convention on Civil and Political Rights

SCECSAL- Standing Conference of Eastern, Central and Southern Africa Library and

Information Association

UDHR- Universal Declaration of Human Rights

UNESCO- United Nations Educational Scientific and Cultural Organisation

UN- United Nations

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 LIST OF CASES

Kenyan Cases

Anne Waiguru v Google Inc. and 2 others (Petition 333 of 2014) eKLR

Hon Martha Karua v Radio Africa Ltd t/a Kiss F.M Station &2 others HCCCNO.28 of 2004

Kwacha Group Companies and Anor v Tom Mshindi and 2 others (2011)eKLR

Rotich Samuel Kimutai v Ezekiel Lonyongopeta and 2 others (2005) e KLR

American cases

Del Plessis and others v De Clerk and Anor (1997)LRC 637

Doe v Cahill, 884 A.2d (Del. 2005)

Schenck v United States (1919)

v
 LIST OF STATUTES

Kenyan Statutes

The Competition Act, 2010

The Constitution of Kenya, 2010

The Copyright Act, 2001

The Defamation Act

American Statutes

Telecommunications Act of 1996, 47 U.S.C.

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 INTERNATIONAL LEGAL INSTRUMENTS

International Covenant on Civil and Political Rights (23rd March 1976)

The Siracusa Principles on Limitation and Derogation of Provisions in the International

Covenant on Civil and Political Rights, Annex, UN Doc E/CN. 4/1984/4 (1984)

The Universal Declaration of Human Rights (1948)

The African Charter on Human and Peoples Rights (27th June 1981)

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 KEY WORDS

Blogs, Blogosphere, Citizen Journalists, Bloggers, Regulation, regulatory framework,

Freedom of expression, Legal Framework and Policy Framework.

viii
 TABLE OF CONTENTS

DECLARATION ........................................................................................................................ i
DEDICATION ...........................................................................................................................ii
ACKNOWLEDGEMENT ....................................................................................................... iii
LIST OF ABBREVIATIONS ................................................................................................... iv
LIST OF CASES........................................................................................................................ v
LIST OF STATUTES ............................................................................................................... vi
INTERNATIONAL LEGAL INSTRUMENTS ......................................................................vii
KEY WORDS ........................................................................................................................ viii
CHAPTER ONE ........................................................................................................................ 1
Introduction ................................................................................................................................ 1
1.0 Background ...................................................................................................................... 1
1.1 Statement of the problem ................................................................................................. 3
1.2 Research questions ........................................................................................................... 6
1.3 Hypothesis ........................................................................................................................ 6
1.4 Significance of the study .................................................................................................. 7
1.5 Delineation and limitation of study .................................................................................. 7
1.6 Methodology .................................................................................................................... 7
1.7 Literature review .............................................................................................................. 8
1.8 Conceptual Clarification ................................................................................................ 11
1.9 Chapter Breakdown ........................................................................................................ 12
1.10 Conclusion.................................................................................................................... 13
CHAPTER TWO ..................................................................................................................... 14
Legal Framework Governing the Enjoyment of the Freedom of Expression and Freedom of
Media in Kenya. ....................................................................................................................... 14
2.0 Introduction .................................................................................................................... 14
2.1 International Law Instruments. ...................................................................................... 15
2.1.1. Hard Law ................................................................................................................ 15
i) The International Covenant on Civil and Political Rights ........................................ 15
ii) The African Charter on Human and Peoples Rights ................................................ 15
2.1.2 Soft Law ............................................................................................................. 16
i) The Siracusa Principles on Limitation of Derogation of Provisions of the ICCPR. . 16
ii) The Universal Declaration of Human Rights ............................................................ 17

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 2.2 Domestic Legal Instruments........................................................................................... 17
2.2.1 Constitutional Underpinning ................................................................................... 17
2.2.2 Statutory Underpinning ........................................................................................... 19
2.2.3 Common Law Jurisprudence ................................................................................... 20
2.3. Conclusion..................................................................................................................... 22
CHAPTER THREE ................................................................................................................. 23
Situational Analysis of the State of Blogging in Kenya .......................................................... 23
3.0 Introduction .................................................................................................................... 23
3.1. Roles played by Kenyas Blogosphere.......................................................................... 24
3.2 The Blogosphere and Governance Reform in Kenya. .................................................... 26
3.3 The Kenyan Blogospheres influence on National Security and Public Order. ............. 27
3.4 The Blogosphere and the Law of Defamation in Kenya ................................................ 28
3.5 The Blogosphere and the Question of Morality in Kenya ............................................. 30
3.6 Response of the Government of Kenya to the Excesses of the Blogosphere ................. 31
3.7. Conclusion..................................................................................................................... 32
CHAPTER FOUR .................................................................................................................... 33
Comparative study: Regulation of the Blogosphere in the American Purview ....................... 33
4.0 Introduction .................................................................................................................... 33
4.1 Anonymous Speech in the Blogosphere ........................................................................ 34
4.1.1 Anonymous Speech in the American Blogosphere ................................................. 34
4.1.2 Anonymous Speech in the Kenyan Blogosphere .................................................... 35
4.2 Cyber Bullying and other Crimes in the Blogosphere ................................................... 36
4.2.1 Cyber Bullying and other Crimes in the American Blogosphere ............................ 36
4.2.2 Cyber Bullying and other Crimes in the Kenyan Blogosphere ............................... 37
4.3 Copyright Protection in the Blogosphere ....................................................................... 39
4.3.1 Copyright Protection in the American Blogosphere................................................ 39
4.3.2 Copyright Protection in the Kenyan Blogosphere ................................................... 40
4.4 Paid up Blog Posts and Consumer Protection Law ........................................................ 41
4.4.1 Paid up Blog posts and Consumer Protection Law in America .............................. 41
4.4.2 Paid up Blog posts and Consumer Protection Law in Kenya .................................. 42
4.5 Conclusion...................................................................................................................... 43

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CHAPTER FIVE ..................................................................................................................... 44
Conclusions and Recommendations ........................................................................................ 44
5.0 Introduction .................................................................................................................... 44
5.1 Conclusions .................................................................................................................... 44
5.2 Recommendations .......................................................................................................... 46
BIBLIOGRAPHY .................................................................................................................... 48

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 CHAPTER ONE

Introduction

1.0 Background

When indiscipline takes over a country, democracy decays into a monocracy-a

government by an unruly and hare-brained mob.1

Freedom of expression is often regarded as a fundamental fountain of democracy in any

institution, system of governance or nation state, since its existence furthers the realization of

other human rights and freedoms.2 Without it, for instance, social justice will not be

obtainable and at the same time, good governance will be ferociously hampered.3In most

jurisdictions, this right is entrenched in the Bill of Rights of the countries constitutions. In

the Kenyan scenario, it is provided for under Article 33(1) of The Constitution of Kenya,

2010.4

Within the international realm of human rights, the phrase freedom of expression connotes

verbal speech and much more, inter alia, any act of seeking, receiving and imparting

information or ideas, regardless of the medium or frontier used.5Further, it is viewed as an

indispensable right that furthers the formulation of public opinion as it enables the society,

when exercising its options, to be sufficiently informed.6

1
See Kagwanja P. Cords Uhuru Park assault on Kenyatta reveals the venerability of Kenyas democracy to
indiscipline Daily Nation, 27th Sep, 2015. Online at<www.nation,co.ke/Oped/Opinion/Cords-Uhuru-Park-
assault-on-Kenyatta/-/440808/288697/eshm3r/-/index.html> accessed on 30th May, 2016.
2
See Makali D., Media Law and Practice: The Kenyan Jurisprudence (2003).
3
See Levi o. and Erneo N., Journalists and the Rule of Law (2011).
4
The Constitution of Kenya, 2010 Art.33 (1) provides thatevery person has the right to freedom of expression,
which includes-freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and
academic freedom and freedom of scientific research.
5
See for instanceThe Universal Declaration of Human Rights, 1948, art. 19 which states thus everyone has the
right to freedom of opinion and expression; this right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media and regardless of frontiers.
6
See Mbondenyi M. and Osogo J., The New Constitution of Kenya: Principles, Government and Human Rights
(2013) p.195.
1
This right, at all times is exercised by either the press, in their capacity as the custodians and

guardians of the rights of the general populace, or individual persons. In this regard, an

American Judge, Learned Hand, is on record to have remarked that the freedom of expression

and the press rests with the people, and that once it dies there, no court can bring it to life

again.7

Despite the fact that freedom of expression is a sacred right that is closely guarded by the

most high of laws, it is overt that it is not an absolute right. In this light, it is noteworthy then

that it does not confer upon anybody the authority to disparage the rights of others. This right

has to be regulated for public order purposes and to instill some discipline and

professionalism in various spheres of life, especially among media personnel.8 The Kenyan

constitution, for instance, makes a provision for instances when this right can be limited.9Mr.

Justice Holmes, while echoing the fact that the freedom of expression is not absolute and that

persons are not protected in everything they choose to write or say, in the United States

Supreme Court decision of Schenck v. United States,10 unequivocally found that the most

strict protection of free expression would not protect a man who, for instance, falsely shouts

fire! in the theatre and causes panic. He further noted that free speech rights, though

regarded as generous, are not themselves limitless.11

The foregoing sentiments notwithstanding, citizen journalism, popularly referred to as

blogging has lately been on the rise in the Kenyan media space. Suffice it to note, questions

7
See Learned H., The spirit of liberty (1944) The Providence Forum. Online at
<www.providenceforum.org/spiritoflibertyspeech> accessed on 24th January 2016.
8
See Linus Gitahi, Media Regulation: Lessons from Kenya, (2010) p.1.
9
See supra n.4. This article provides for the freedom of expression while sub articles 2 and 3 pen down the
limits within which such a right may be exercised. Of much interest to this discourse is the proviso to the effect
that in the exercise of the right to freedom of expression, every person (including bloggers) shall respect the
rights and reputation of others.
10
See Schenck v. United States(1919), an American Supreme Court case which invented the clear and present
danger test to determine when the state can constitutionally limit an individuals right to the freedom of
expression. Online at <www.pbs.org/wnt/supremecourt/capitalism/landmark_schenck.html> accessed on 24th
January 2016.
11
Ibid.
2
have always risen as to whether bloggers should be regarded as journalists or not, and it

appears to be that this debate is far from ending.12A striking difference does exist as between

bloggers and other professional journalists in the sense that unlike the traditional brick-and-

mortar reporters who are answerable to an editor or publisher somewhere, bloggers are in

most cases relatively anonymous and often lack a certain sense of accountability and

responsibility when it comes to accurately reporting information. 13It then behooves us to get

to the very old questions that the traditional journalists have grappled with over time,

questions which linger around creating credibility and responsibility in reporting.14 Further,

we must then get to the bottom of the discussion as to whether bloggers are indeed

journalists, and if they seek to claim the privileges of being journalists, should they be

expected to follow the same regulatory processes as those of the traditional journalists?15

This research paper, will therefore seek to unearth the mystery around the sacrosanct freedom

of expression in relation to the growing blogging industry in Kenya and the pressing urge to

bring bloggers to the subjection of regulatory laws in the country. Further, a balanced view

that will emanate from this research paper will be key to the formulation of regulatory

policies and laws that will not, by all means, gag bloggers.

1.1 Statement of the problem

Citizen Journalism, as blogging is often referred to, is indeed a hot button issue in Kenya

today. There have been debates as to whether it is journalism at all and most often, the

12
See Declan McCullough, Bloggers as Journalists in New Media: The Press Freedom Dimension Challenges
and Opportunities of New Media for Press Freedom, UNESCO (2007) (report of the panel) p.63 online
<docplayer.net/911249-New-media-the-press-freedom-dimension.html>at 21st January 2016.
13
Ibid.
14
See Ehab Elzelaky, Blogs setting media pace in Egypt in New Media: The Press Freedom Dimension
Challenges and Opportunities of New Media for Press Freedom, UNESCO (2007) (report of the panel)
p.57online <docplayer.net/911249-New-media-the-press-freedom-dimension.html >at 21st January 2016.
15
See Supra n.12.
3
pendulum has always swung between being and not being.16Those favouring it not being

journalism, argue that it is not journalism because it does not follow familiar forms or rules
17
yet it does fill the same social role as journalism. Opponents of this view opine that by

whatever name one may call it, blogging exists alongside journalism and therefore it does not

replace it.18

Blogs are a new means of expression for certain social, political, and religious groups and

minorities whose causes rarely, or never, find their way into traditional media. It has created a

platform for people to air out, defend and discuss their secular thoughts, which is a rarity in

the traditional media, given the changing trends in nearly all spheres of the society.

Notwithstanding the immense contribution of blogging to the expansion of the freedom of the

media and freedom of expression in the country, voices have been raised to the effect that

bloggers in the country have run wild. Persons from various walks of life have raised

concerns over the unregulated nature of the blogging industry.19 Sentiments to the effect

that much as the law provides a protective umbrella for the journalist to operate, setting

boundaries and providing guidelines that define his or her area of operation, journalists must

also seek to operate within the set guidelines, have been raised over time.20

Kenyan bloggers have lately found themselves on the wrong track of the law. The infamous

case of one, Allan Wadi,21captures vividly, the growing discontent with the manner in which

16
See Steve Yelvington, Blogs challenge traditional media In New Media: The Press Freedom Dimension
Challenges and Opportunities of New Media for Press Freedom, UNESCO (2007)(report of the panel)p.60
online <docplayer.net/911249-New-media-the-press-freedom-dimension.html >at 21st January 2016.
17
Ibid.
18
See supra n. 16.
19
See Joyce Kimani, Bloggers to undergo Journalism Training Daily Nation, 14th October 2015, 5. Online at
<mobile.nation.co.ke/Bloggers-to-undergo-journalism-training/1950946/2031590/> accessed on 25 th January
2016.
20
Ibid.
21
See Faith Karanja, Hate messages on President Uhuru Kenyatta lands student in jail The Standard Digital,
3rd January 2015, 10.online at<www.standardmedia.co.ke/mobile/article/2000146557/hate-messages-on-
president-uhuru-kenyatta-lands-student-in-jail/>accessed on 25th January 2016.
4
the unregulated blogosphere in Kenya is being run. The state has often moved to invoke

different regimes of law (especially the law on the tort of defamation and libel),22 due to lack

of blog-specific regulatory laws, in order to bring sanity to the excesses of bloggers. This

move, most often than not, has received scathing attacks and sometimes portrayed the

government of the day as being hell-bent towards scuffling media freedom and tending

towards authoritarian leadership.23In this regard, concerns have been raisedover the recent

growing arrests and detentions of bloggers perceived to be critical of the government. 24The

police force has been receiving the brunt of this criticism, as being an agent of the State in the

purported clamping down of media freedom and the freedom of expression.25 The police on

their part, are of the view that they are not being used to gag bloggers, but that their business

is enforcing the law, especially, the now seemingly infamous Section 29 of the Information

and Communication Act.26

Notwithstanding the raging debate, it remains clear that the time to regulate the activities of

bloggers in Kenya is here with us. This state of affairs therefore informs the subject matter of

this research paper. A keen study into the various pieces of legislation touching on media

freedom in the country will seek to unravel the extent to which bloggers have been regulated

( if such regulations exist) and to what extent can the noose against them be tightened without

curtailing media freedom and the freedom of expression in the country.

22
See supra n.2 p.19.
23
See supra n.21.
24
See Cyrus Ombati, Orengo to lead lawyers in defending 10 bloggers targeted by police, The Standard
Digital, 26th January 2016.online at<www.standardmedia.co.ke/article/2000189361/orengo-to-lead-lawyers-in-
defending-10-bloggers> accessed on 28th January 2016.
25
See supra n.24.
26
This section of the law deals with the improper use of a licensed telecommunication gadget and in the opinion
of those opposed to its application, it is viewed as an instrument to target those communicating online.
5
 1.2 Research questions

This research paper will seek to answer the following questions:

i. Is the freedom of expression of bloggers subject to similar regulations as those under

which professional journalists are put?

ii. What is the nature of the existing legal framework in Kenya, as far as the regulation of

media freedom and the freedom of expression is concerned? How does this framework

address the budding blogging industry?

iii. How have other states such as the United States of America, regulated blogging?

iv. What important lessons can Kenya learn from practices in the US in furtherance of

media regulation, without necessarily curtailing the freedom of expression of her

citizenry and particularly bloggers?

1.3 Hypothesis

This research paper is done with the following presumptions in mind:

i. That the freedom of expression guaranteed by the constitution of Kenya,201027 and

other international law instruments is not an absolute right, and therefore subject to

regulations.

ii. That bloggers, who can be viewed broadly as pseudo-journalists, should be put under a

regulatory mechanism to facilitate responsible and accountable acquisition and

dissemination of information through their blogs.

iii. That Kenya, as a growing modern democracy can learn from the experience of other

countries in its bid to regulate media freedom, especially that of bloggers, in furtherance

of the realization of the constitutionally guaranteed freedom of expression.

27
See supra n.4.
6
1.4 Significance of the study

This research paper shall go a long way in informing the formulation of sound regulatory

practices on the exercise and enjoyment of the freedom of expression especially by citizen

reporters, popularly referred to as bloggers in Kenya. It will therefore be a helpful

illumination to policy makers and indeed the Government of Kenya in the process of

formulating a framework aimed at facilitating responsible acquisition and dissemination of

information by the budding wing of the fourth estate without clipping up their

constitutionally guaranteed rights and fundamental freedoms.

1.5 Delineation and limitation of study

This research paper is designed to cover the legal framework and various government

policies structured to regulate the exercise of the freedom of expression especially in the

media industry. Special reference is done to other jurisdictions especially the United States of

America with a view to deriving important lessons and recommendations aimed at improving

the state of the legal framework and policies touching on the freedom of media, be it

mainstream or otherwise in Kenya.

1.6 Methodology

This research is conducted largely by desktop research. It involves a review of previously

written materials and literature along with a systematic analysis of the relevant legislation and

policies, with the aim of drawing logically sound conclusions and offering relevant solutions,

where necessary. The research relies on primary and secondary sources, including

constitutional provisions, international law, specific domestic legislations and various policy

statements on this area of research. It also adopts a comparative analysis of other

7
jurisdictions, in order to distil some of best practices that will inform the formulation of a

constitutionally-sound regulatory mechanism on the blogging industry.

1.7 Literature review

In the recent past, there has arisen a heated debate (especially in Kenya and in the wake of

continued terrorist attacks by the ragtag Somalia militia (Al-Shabaab) and the fluid state of

the Kenyan political landscape) regarding the possibility of regulating the Kenyan

blogosphere, and the resultant legal effects thereof, specifically on the constitutional freedom

of the media and the freedom of expression. Scholars and legal practitioners have penned

down their views in order to inform the right trajectory to be pursued in furtherance of this

debate. A review of their writings hereunder, sheds some light into the existing lacuna that

this research paper ultimately seeks to fill.

Josh Stearns, in his book titled Acts of Journalism: Defining Press Freedom in the Digital

Age,28 for instance, is of the opinion that the rise of professional journalism in the 20th

century created an image that professional journalists only engaged in journalism, an image

that is not only false, but also fallacious since many people who are not necessarily

professional journalists are taking part in journalism as well. He further notes that as many

people are committing acts of journalism, it is getting blurrier in drawing the line as between

who a journalist is, and who is not. He opines that citizen journalists just like traditional

journalists, need protection and further that there is a need to shift the understanding of what

press freedom is to cover citizen journalism. This view, in my opinion, is essential in tackling

the all-important question of whether the reach of our national laws and regulations touching

on traditional journalists should be expanded to cover bloggers. Josh does not state whether

these bloggers, while being accorded protection of the law, should be put under some sort of

28
See Josh Stearns, Acts of Journalism: Defining Press Freedom in the Digital Age (2013).
8
regulation just like their colleagues in the mainstream media. This research paper will seek to

fill this lacuna without gagging press freedom and the freedom of expression in Kenya today

Sara Hadwin and Duncan Bloy, in their book Law and the Media29 review the exercise of

the freedom of expression as provided for in various human rights instruments, most notably,

the UDHR and the ECHR. They opine that the freedom of expression is not an absolute right

and therefore it is subject to limitations.30In their opinion, such limitations should only occur

when it becomes absolutely necessary to do so. Further, they posit that rights and

responsibilities do go hand in hand. In this regard, they are of the view that it becomes

obvious that when one writes about an issue that the state and indeed individuals believe

could adversely affect national security and cohesion, sharper criticism should be accorded

forthwith. Their view indeed goes deep down into the influence that modern day Kenyan

bloggers have had in the society. However, these two scholars go short of recommending a

workable way through which such influence may be brought to accountability. This therefore

leaves the begging question that this research paper will be answering: has the time to

regulate bloggers in Kenya dawned? If yes, under which modalities?

David Makali, in his book Media Law and Practice: The Kenyan Jurisprudence31 offers a

scathing critique over the legal limits set by Kenyas judiciary on the enjoyment of the right

to freedom of expression. He deeply dissects the logic and philosophy that drives the thinking

of Kenyas Bench as evidenced by a series of high damages awarded to libel litigants which,

in most instances have raised eyebrows in legal and journalism circles. Makali, differs

sharply with the minds of Justices Nyamu and Emukule32 to the extent that he views the

decisions emanating from such courts as being a big deviance of the Kenyan Bench from

international conventions and trends in freedom of expression thinking. He however, fails to

29
See Sara H. and Duncan B., Law and the Media (2007).
30
Ibid at p.67.
31
See supra n.2.
32
See infra n.34.
9
appreciate the need to bring everyone, including citizen journalists, under the subjection of

good law. Essentially, the doctrine of the rule of law rather than that of men doesnt ring any

bell to him, and therefore he mistakenly portrays members of the fourth estate as angels who

do not need any form of regulation. This research paper will seek to give a better approach to

regulation of journalists, especially those engaged in the blogosphere without necessarily

curtailing their freedom of expression and the freedom of media.

Neelam Verjee, in her article titled In Kenya, Bloggers Say New Media Bill Makes Them

Vulnerable to Prosecution,33brings out quite evocatively, the much expected outcry from the

blogosphere, directed towards the move by the government of Kenya to enact legislations

(The Media Council Act, 2013 and The Kenya Information and Communication

(Amendment) Act, 2013) that seek to facilitate both state-sponsored regulation and self-

regulation in the media industry. The article expounds on the fears of most bloggers who

view the legislations as being draconian, and their enactment as a move to crackdown on the

countrys outspoken virtual community. The views of the interviewees in this article

notwithstanding, there persists an urge to instill responsibility and accountability in pursuance

and enjoyment of every constitutionally guaranteed right and freedom. This fact appears to

escape the enraged interviewees and the author of this article. This research paper will seek to

bring into focus a balanced view on the need to make bloggers responsible and accountable

for their activities in Kenya, now going forward.

Justice Nyamu (as he was then) and Justice Emukule sitting at the High Court in the case of

Hon. Martha Karua v. Radio Africa Ltd t/a Kiss F.M. Station & two others,34are of the

opinion that exercising restraint on ones freedom of expression instills responsibility in those

33
See Neelam Verjee, In Kenya, Bloggers Say New Media Bill Makes Them Vulnerable to Prosecution,
TechPresident, 21st January 2014, 1. Online at <http://techpresident.com/news/wegov/24688/kenya-bloggers-
media-bill-vulnerable-prosecution>accessed on 22nd January 2016.
34
See Hon. Martha Karua v. Radio Africa Ltd t/a Kiss F.M. Station & two others HCCCNO. 28 of 2004 at p.14
and p.18.
10
involved and further discourages impunity. Further, they note that a limitation on the freedom

of expression is meant to safeguard certain social interests including reputation, morals,

national security among others. They also reckon that nearly all international human rights

instruments recognize limitations, most notably Articles 12(3), 13, 18(3), 19(3), 21, 22(2) of

the International Covenant on Civil and Political Rights and Articles 11 and 12(2) of the

African Charter on Human and Peoples Rights among other international conventions. These

learned judges correctly capture the whole purpose, intent and theory of this research paper;

that those who wish to express themselves through whichever medium must do so within

some framework in order to avoid irresponsible and reckless exercise of the freedom. Indeed

it is on this premise that this research paper shall be proposing a plausible mechanism of

regulation of the blogosphere in Kenya.

The foregoing pieces of literature, and the many that reference will be made to, will provide

an informative ground through which a well thought out regulatory mechanism will be

established for the blogging world in Kenya today.

1.8 Conceptual Clarification

The following words and phrases will, time and again, be used in this research paper and will

have the following connotations:

Ethics-the standard by which acts or decisions are evaluated as to their rightness or

wrongness.35

Citizen journalism-this is the collection, dissemination and analysis of news and information

by the general public especially by means of internet. 36

35
See Levi o. and Erneo N., Journalists and the Rule of Law (2011) p.60.
36
See online at<www.oxforddictionaries.com/definition/english/citizen-journalism> accessed on 22nd January
2016.
11
Journalist-this is a person who collects, writes or distributes news or other pieces of current

information.37

Blog-this is an online journal to which regular entries are posted. Such journal may cover

specific topics which may feature commentaries, videos and other material on the subject

matter. Most blogs are interactive in nature and therefore allow readers to post comments

thereon.38

1.9 Chapter Breakdown

For the purposes of a detailed research on the subject matter beforehand, this research paper

will proceed as follows:

Chapter one is the proposal of this research paper. This chapter will address itself to the

background of the study, the statement of the problem, hypothesis and the research questions

that will be answered through this study. Further, this chapter will deal with a review of

various pieces of literature that will be relied upon throughout the study.

Chapter two will look at the existing legal framework in Kenya. This will be done by an

analysis of various constitutional provisions, media-specific legislations and policies,

international law provisions and common law provisions aimed at regulating the acquisition

and dissemination of information in the country. This exposition will lead to a deeper focus

on the pressing urge to regulate the activities of bloggers in the wake of run-away,

irresponsible broadcasting and the continued government insurgency into media freedom.

37
See online at <https://www.google.com/search?q=legal+definition+of+journalist&ie=utf-8&oe=utf-8>
accessed on 22nd January 2016.
38
See online at <http://www.nolo.com/dictionary/blog-term.html>accessed on 22nd January 2016.
12
Chapter three will be a situational analysis on the state of blogging in Kenya. This will be

important in establishing the justification for the limitation of the activities of bloggers in the

country.

Chapter four will be a comparative study conducted on the American jurisdiction owing to its

rich jurisprudence on the subject matter of this study. This is in a bid to show where the

Kenyan law can be improved for furtherance of efficient and constitutionally-informed

regulation of the blogging industry.

Chapter five draws conclusions and posits recommendations aimed at addressing the

pressing urge to regulate bloggers by looking into the need for a definitive legal framework to

that end and proscribing constitutionally sound regulatory practices on the ever-growing

blogging industry, going forward.

1.10 Conclusion

There is a pressing urge to prescribe an effective and definitive legal framework for the

regulation of the blogging industry in Kenya. An in-depth analysis of the existing laws and

policies will inform the crafting of a better legal framework that does not spell doom to the

acquisition and dissemination of information through bloggers.

The next chapter examines the existing legal and policy framework for the regulation of

media personalities with a view to exposing the weak links in the law of the country as far

media freedom and regulation of blogging is concerned.

13
 CHAPTER TWO

Legal Framework Governing the Enjoyment of the Freedom of Expression and

Freedom of Media in Kenya.

2.0 Introduction

The laws governing the freedom of expression and the freedom of media in Kenya are

fragmented and therefore exist in different sections of Civil and Criminal laws. 39The sources

of press law in Kenya include the Constitution, International Law instruments, Statutory Law

and Common Law.

It is noteworthy then that the blogosphere, being on a steady growth trajectory in Kenya, has

had to contend with the Law. The courts and the legislature are increasingly working hard to

align the law with the new order.

In view of the foregoing, this chapter describes and analyses the law relating to the regulation

of the enjoyment of the freedom of expression and the freedom of media especially by

bloggers in Kenya today. This analysis is important because there appears to be a lacuna in

the regulation of bloggers in Kenya. This is informed by the recent hot debates that have

surrounded the issue on whether it is necessary to put bloggers under some form of regulatory

regime or not. Further, the freedom of expression is a sacred human right whose qualification

should be restricted to the barest essentials. Indeed free speech is one of the most precious

rights of man yet when one speaks, writes or prints any material with freedom, they should be

held responsible for such abuses of this freedom as is defined by law.

39
See Peter M., The Media, Legal, Regulatory and Policy Environment in Kenya: A Historical Briefing (2008)
p.1.
14
2.1 International Law Instruments.

Kenya, through Article 2(5) and 2(6) of the Constitution40 has domesticated and is therefore

bound by a plethora of international law instruments which recognize and proscribe the style

and manner in which the freedom of expression may be enjoyed. Four of such instruments are

discussed hereunder:

2.1.1. Hard Law

i) The International Covenant on Civil and Political Rights

This Convention was adopted by the United Nations General Assembly in 1976 and was

ratified by Kenya on the 23rd March of the same year. It evinces that everyone has the right to

hold opinions without interference.41Further, the convention provides that everyone has the

right to the freedom of expression which includes the freedom to seek, receive and impart

information and ideas of all kinds without due regard to the frontiers used.42

The Convention does not go short of laying a caveat on the exercise of this right. It provides

that this right bears special duties and responsibilities which shall only be geared towards

upholding the respect of the rights and reputation of others and the protection of national

security, public order, public health and morals.43

ii) The African Charter on Human and Peoples Rights

This Charter was adopted in June, 1981 and was ratified by Kenya on the 23rd January 1992.

It provides that every individual has the right to receive and impart information.44Further,

every individual has an entitlement to express and disseminate opinions within the law.45

40
The Constitution of Kenya, 2010 Art. 2(5) provides that the general rules of international law form part of the
law of Kenya. Art. 2(6) specifically states that any treaty or convention which has been ratified by Kenya also
forms part of the law of the country under the constitution.
41
See International Covenant on Civil and Political Rights(23rd March 1976) Art 19.
42
Ibid.
43
Ibid.
44
See The African Charter on Human and Peoples Rights (27th June 1981) Art. 9.
45
Ibid.
15
Suffice it to note, this piece of law contemplates the enjoyment of the freedom of expression

within the purview and precincts of the law. Without second guessing, this points towards

some form of regulation through an entrenched system of the law and policies.

This instrument therefore, forms part of the basis on which the freedom of expression in the

blogosphere may be regulated in Kenya, now going forward.

2.1.2 Soft Law

i) The Siracusa Principles on Limitation of Derogation of Provisions of the

ICCPR.

These Principles were enacted as an annexure to the ICCPR in 1984.They provide a scope

within which states may limit and derogate rights provided for under the ICCPR. Worth

noting regarding the freedom of expression and the freedom of media is the principle that

requires that the scope of a limitation of right referred to in the covenant should not be

interpreted in a manner that would jeopardize the essence of the right.46In this regard,

limitation clauses are to be interpreted strictly and in favour of the right in issue.47

Further, the principles require that there should be no arbitrary imitation of any right. 48This

lays an emphasis to the effect that the need to protect public safety may justify limitation but

as provided for in law.49This need cannot be used to impose vague and arbitrary limitations

and therefore cannot be invoked where there already exist adequate safeguards and effective

remedies against abuse.50

These principles, by far and large, inform the dimension that should be pursued in furtherance

of the regulation of bloggers in Kenya.

46
See The Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on
Civil and Political Rights Annex, UN Doc E/CN.4/1984/4 (1984) which enunciates the manner in which
restrictions and limitations to rights may be exercised.
47
Ibid.
48
See supra n. 46.
49
Ibid.
50
Ibid.
16
 ii) The Universal Declaration of Human Rights

This Convention came into force in 1948 and provides that everyone has the right to the

freedom of opinion and expression.51This right encompasses the right to hold opinions

without interference and to seek, receive and impart formation and ideas through any media

without any regard to the frontiers used.52

This convention goes short of providing for the circumstances under which this right may be

limited despite the fact that this is not an absolute right.

2.2 Domestic Legal Instruments

While being cognizant to its international duties and obligations regarding the obedience to

the principles pertaining the right to freedom of media and the freedom of expression, Kenya

has enacted legal instruments which facilitate the enjoyment of these rights. These

instruments include the Constitution, Acts of Parliament (statutes),Media Regulations and

Judicial decisions (common law).

2.2.1 Constitutional Underpinning

The Constitution of Kenya, 2010 provides for the right to freedom of expression which

encompasses the freedom to seek and receive information, the freedom of artistic creativity

and the freedom of scientific and academic research.53This right, it should be noted, does not

extend to the spread of propaganda for war, incitement to violence, hate speech or advocacy

of hatred.54Further, the Supreme Law of the country requires that in the exercise of this right,

everyone is duty bound to respect the rights and reputation of others. This is the farthest that

the Constitution of Kenya has gone in a bid to guarantee this sacrosanct right.

51
See The Universal Declaration of Human Rights (1948) Art.19.
52
Ibid.
53
See The Constitution of Kenya, 2010 Art.33.
54
Ibid.
17
Another Constitutional provision that is directly related to the blogging industry in Kenya is

the right to the freedom of the Media. In this regard, the constitution guarantees this freedom

and freedom and provides that the state shall not any control whatsoever or interfere with any

person engaged in broadcasting, production or circulation of any publication, or the

dissemination of information by any media.55

The aforementioned proviso does not necessarily do away with any form of regulation.

Rather the requisite regulation is justified under Article 34(5) which requires that Parliament

should enact a legislation that establishes a body which is independent of government control,

commercial and political interests which shall set media standards and regulate and monitor

compliance with those regulations. This gives room for the much dreaded state-sponsored

regulatory mechanisms, which most bloggers view as an affront to their democratic rights and

freedoms.56

The Constitution does not fall short of delimiting the rights and freedoms that are not subject

to any limitations and restrictions.57Conspicuously missing from this list of non-derogable

rights and freedoms are the freedoms of expression and the freedom of media. This in turn

cements the assertion that these two rights are not absolute but are subject to legal limitations

in Kenya.

In the enforcement of limitations against the freedom of expression and the freedom of media

among other rights, the Constitution evinces an articulate outline under which such

limitations may be pursued. The constitution rightly puts it that the limitation should be

reasonable and justifiable in an open and democratic society based on human dignity,

55
See supra n.53 Art.34.
56
See supra n.33 in which bloggers are of the view that the enacted legislations make them vulnerable to
prosecutions.
57
See The Constitution of Kenya, 2010 Art. 25. This article provides that despite any other provisions of the
constitution, the freedom from torture and cruel, inhuman or degrading treatment or punishment; the freedom
from slavery or servitude; the right to fair trial; and the right to an order of habeas corpus shall not be derogated
from or limited.
18
equality and freedom while taking into account all relevant factors including the purpose of

the limitation, the nature and extent of the limitation, the need to ensure that the rights of

others are not infringed upon and whether there are less restrictive means to achieve the

purpose of the limitation.58

2.2.2 Statutory Underpinning

The statutory provisions governing the freedom of expression and by extension the freedom

of media in Kenya are enshrined, albeit in piecemeal, in various Acts of Parliament which

include The Defamation Act; The Penal Code; The Books and Newspapers Act; The

Copyrights Act; The Preservation of Public Security Act; The Public Order Act; The ICT Act

of 2007; The Media Council Act, 2013 and The Kenya Information and Communications

(Amendments) Act, 2013.

The provisions of The Penal Code, The Kenya Information and Communications

(Amendments) Act, 2013, The Public Order Act, and The Defamation Act, have lately been

notoriously invoked in order to bring into account erring bloggers.

Particularly, the provisions of The Kenya Information and Communications (Amendments)

Act, 201359is of interest to bloggers in that the Act creates offences and prescribes penalties

for some of their acts and omissions. For example, the often invoked section 2960creates the

offence of misusing a licensed electronic gadget and therefore attracts severe penalties

including the imprisonment of its convicts. This has, time and again, received harsh criticisms

which view this part of the law as being draconian and worse still, unconstitutional.

58
See The Constitution of Kenya, 2010 Art.24.This provision is a laudable move aimed doing away with
arbitrariness with which constitutionally guaranteed rights and freedoms are often limited by the powers that
are.
59
This is an act of Parliament that facilitates the development of the information and communication sector in
Kenya.
60
See supra. 26.
19
The Media Council Act, 201361 in the Second Schedule establishes an assorted code of

conduct which all journalists and media practitioners are required to keep and maintain

professional and ethical standards and at all times, comply with. Often times, bloggers view

themselves as being protected by the same regime of laws governing the acts and omissions

of professional journalists and if this remains to be there stand for a long time, they are

therefore bound by the established code of conduct under this act.62

While the law requires that any limitation of a right should be expressly provided for, the

limitation of the rights of bloggers in Kenya lacks on this front. An analysis of the

aforementioned pieces of legislation reveals that Kenyas blogosphere operates in the jungle

and that the invoked Acts of Parliament do not succinctly address this budding new media. It

therefore appears that the application of these laws is a desperate move which more often

than not has received unforgiving criticisms.

2.2.3 Common Law Jurisprudence

The Constitution of Kenya, 2010 gives every person the unfettered right to institute court

proceedings claiming that a right or a fundamental freedom has been denied, violated or

infringed, or is threatened.63In this regard courts in Kenya have been served with a number of

litigations touching on the fundamental right to freedom of expression and the freedom of

media, lately emanating from the Kenyan blogosphere.

While the Constitution generously guarantees the freedom of media and the freedom of

expression, the courts have invariably applied various laws especially on the tort of libel and

61
This is an act of Parliament that gives effect to Article 34(5) of the Constitution, and further establishes the
Media Council of Kenya and the Complaints Commission.
62
Ibid
63
See The Constitution Of Kenya, 2010 Art. 22
20
the crime of sedition as provided for in Section 56 of The Penal Code,64to proscribe the

limitation within which these rights may be exercised.

For instance, the High Court in the case of Kwacha Group Companies and Another v Tom

Mshindi and 2 others65ruled that even though The Constitution of Kenya, 2010 provides for

press freedom and the freedom of expression, and forbids the state from exercising control

over or penalizing the media, these freedoms are not to be interpreted that a court of law may

not hear and determine suits of defamation brought against any form of media, including the

blogosphere.

While giving the ruling, 66the court relied on decisions from other common law jurisdictions.

Of interest is the holding in the South African case of Del Plessis and Others-vs-De Clerk

and Another67 where the court stated that any law of defamation is a restriction on the

freedom of speech in the interest of other rights worthy of protection .More particularly, in

cases of defamation, the courts have tried to strike a balance between the protection of

reputation and the right of freedom of expression.

The aforementioned ruling affirms the fact the courts are keen to entertain suits targeting any

media front, and when necessary may prescribe regulatory and punitive measures in order to

instil accountability among media personnel, including bloggers. This is further illustrated in

the notorious case of one Allan Wadi in which the Magistrates Court sentenced the errant

blogger heavily.68

64
This section of the law is often seen as a device by the government to silence its critics.
65
See Kwacha Group Companies and another v Tom Mshindi and 2 others (2011) e KLR where Justice
Kalpana Rawal emphasized that the courts will not shy away from enforcing the rights of other people if at any
time they are under a threat.
66
Ibid.
67
See Del Plessis and Others-vs-De Clerk and Another (1997) LRC 637 at 672.
68
See Alan Wadi Okengo V Republic (2015) eKLR which was an appeal lying at the High Court following a
conviction and subsequent sentencing of a charge of hate speech.
21
2.3. Conclusion

Kenya has a plethora of laws that govern the exercise of media freedom and the freedom of

expression. These sets of laws fall short of making an express mention of the budding

blogosphere in the country. Further, this industry appears to be regulated through inferences

and implications drawn from the various pieces of law described above. This state of affairs

underscores the underlying legal problem that this research paper seeks to address.

The next chapter is a situational analysis carried out on the state of blogging Kenya. This is

necessary in order to establish the justification for regulating and restricting the activities of

bloggers in the country.

22
 CHAPTER THREE

Situational Analysis of the State of Blogging in Kenya

3.0 Introduction
69
Since the establishment of the first blog in Kenya, the countrys blogosphere has grown

tremendously to accommodate the fast ballooning number of internet users in the country.

Kenyan blogs indeed offer diversity and variety of content that is available online. These

blogs have become an effective device through which the general populace can write on

various topics of interest while at the same time exercising their freedom of media and

expression as guaranteed in The Constitution of Kenya, 2010.70In this regard, it should be

noted that Kenyan bloggers have had an impact and influence that is not limited to their

online readership.71 They have, more often than not, emerged as a credible source of stories

for even the mainstream media.72

The aforementioned notwithstanding, it has been contended that lately, a clique of

unprofessional bloggers has arisen in the country which masks itself in the faade of

political and social commentators.73 This clique often operates outside the formal framework

of politics and media and in so doing, gets the latitude to make inherently biased blog-posts

whose major intent is shaping of voter behaviour and arm-twisting and manipulation of the

69
The first blog in Kenya is said to have been established in 2003 and since then the blogosphere in Kenya has
grown to be the third largest in the African Continent. See Frankline Sunday, Kenya has the third highest
number of blogs in Africa Business Daily, 29th July, 2010.Online at <www.businessdailyafrica.com/kenya-has-
third-highest-number-of-blogs-in-Africa/-/539444/966652/-/6l2thnz/-/index.html> accessed on 2th February,
2016.
70
See Lilian K. Blogging and Social Media Use in Kenya Growing, Says Report (2015) Kenya Monitor.
Online at <www.monitor.co.ke/2015/06/23/blogging-social-media-use-kenya-growing-says-report/> accessed
on 25th February, 2016.
71
See Ethan Z. Kenya: citizen media in a time of crisis (2008) My Heart Is in Accra. Online at
<ethanzuckerman.com/blog/2008/06/20/kenya-citizen-media-in-a-time-of-crisis/> accessed on 25th February,
2016.
72
Ibid.
73
See David G. Using The Blogosphere To Undermine National Security (2015) Intelligence Briefs. Online at
<intelligencebriefs.com/using-the-blogosphere-to undermine-national-security/> accessed on 25th February 26,
2016.
23
countrys political leadership.74Indeed, some of these bloggers have a strong penchant to

making posts which is in most times false, alarming and libellous.75

In light of the foregoing, Kenyan bloggers have had, in many a time, to fight for and save

their credibility and have gone to pains in explaining various issues touching on them

including but not limited to doubts regarding their intentions and the notion that they are

nothing but social media trouble-makers who are hell bent towards writing anything

sensational and vulgar. 76

This chapter therefore, seeks to unearth the roles of the blogosphere in Kenya today, with a

keener focus put on such headlights as the blogosphere and governance reform in Kenya, the

blogospheres influence on national security and public order, the blogosphere and the law of

defamation in Kenya and finally the blogosphere and the morality question in Kenya. Further,

this chapter will delve into the response given by the Government of Kenya regarding the

excesses of the budding blogosphere in the country. This is in a bid to justify the urge to

regulate the blogging world in Kenya today.

3.1. Roles played by Kenyas Blogosphere

The blogosphere in Kenya was initially used as a platform for the general populace to share

their thoughts, feelings, opinions and experiences.77However, this is no longer the trend as

people from different walks of life, be they in the political world or the religious realm, the

business world or the world of academia, are lately making frantic and spirited efforts to

expand their digital presence and therefore increase their clientele.78

74
See supra n.70.
75
Ibid.
76
See supra n. 67.
77
See Nicole B. Blogging is More Important Today Than Ever Before (2013) Social Media Today. Online at
<www.socialmediatoday.com/content/blogging-more-important-today-ever/> accessed on 26th February 26,
2016.
78
Ibid.
24
From a wide view, the blogosphere broadly performs three known functions in Kenya, which

include blogs being a platform for expression, blogs functioning as networks and finally

blogs as the fifth estate in Kenya.79

As a platform for expression, users are able to directly publish their thoughts which are not

filtered or censored, by circumventing the conventional control mechanisms put forth by the

State.80Further, the blogosphere is a cost-effective and easy-to-use platform which also acts

as a training ground for self-expression not just for the bloggers but also for the readership of

the blog posts.81

In its role as the fifth estate, the blogosphere carries out the role of checks and balances

against the three arms of government.82 This role is performed through the dissemination of

information and the provision of alternative perspectives which challenge the dominant frame

and therefore set new agenda for the country.83

As a networking platform, the blogosphere has had an influence in the field of social

networking. Further, it has been used, more often than not, as a mobilizing tool for common

courses in the country. In this regard, blogs have been used to mobilize and recruit citizens in

order to enable them participate in various political discourses in furtherance of the

democratization process in Kenya.84

The foregoing notwithstanding, the influence of the blogosphere in Kenya, cannot therefore

be gainsaid.

79
See Ming K. Blogging and Democracy: blogs in the Malaysian Discourse (2009) p.1 online at
<www.academia.edu/1090838/Blogging_and_democracy_Blogs_in_Malaysian_Political_Discourse/>accessed
on 26th February 26, 2016.
80
Ibid.
81
Ibid.
82
The arms of government, conventionally referred to as the three estates, as established in the Constitution of
Kenya, 2010 are the Judiciary, the Executive and the Legislature. Mainstream media is often referred to as the
fourth estate while the blogosphere is now emerging as the fifth estate.
83
See supra n.76.
84
See Odikadotnet, The Role of the Internet in Political Mobilization (2012) online at
<odikadotnet.wordpress.com/2012/07/23/the-role-of-the-internet-in-political-mobilization/> accessed on 26th
February, 2016.
25
3.2 The Blogosphere and Governance Reform in Kenya.

The press has often been viewed as a government watchdog for quite some time now, yet the

idea of a vigilant blogosphere monitoring and exposing the excesses of the government has

gained a new traction in Kenya today.85Indeed there has been a renewed interest in watch dog

reporting in Kenyas blogging space wherein the blogosphere has emerged as the publics

eyes and ears and not merely a passive recorder of events.86

It is trite that a government cannot be held accountable if the citizenry are ill-informed about

the actions of the government officials and government institutions. In this regard, Kenyan

bloggers cover an array of malfeasance in government including personal scandals, financial

impropriety, corruption in politics, and false enrichment in public office among other social

evils.87

Suffice it to note, a vigilant blogosphere in Kenya is necessary for good governance in the

country. It ensures that individuals and institutions who shoulder the responsibility of serving

the general public remain true to their call and are therefore held accountable.88

While exposing rot in the government, bloggers are often times involved in what may be

termed as watchdog journalism.89This is exposure journalism which therefore attracts the

input of ethics and public morals.90 The Kenyan blogosphere however, does not subscribe to

a known code of ethics and this has been a hot button issue that has recently attracted spirited

debates. This fortifies the assertion that there ought to be a regulatory mechanism in the

blogosphere, be it self- regulation or state- sponsored regulation. This is to cater for the

excesses of bloggers in the event that one strays off in pursuance of investigative and

85
See Sheila C. Public Sentinel: News Media and Governance Reform (2012) p. 111.
86
See supra n.82.
87
Ibid.
88
Ibid.
89
Ibid.
90
Ibid.
26
exposure journalistic works with a view to checking on the excesses of the government of the

day.

3.3 The Kenyan Blogospheres influence on National Security and Public Order.

National security is defined as the protection of against internal and external threats to

Kenyas territorial integrity and sovereignty, its people, their rights, freedoms, property,

peace, stability and prosperity, and other national interests.91

The tremendous growth noted in Kenyas blogosphere has had far-flung security implications

for the general populace, the Government of Kenya and its security agencies in the recent

times.92 The growth in the blogosphere, has recently seen criminal gangs and organizations

use it as a tool for recruitment of members, communicating and spreading of propaganda and

the furtherance of radicalization.93Terrorist groups, hate mongers, protestors and rioters have

taken advantage of the growing internet space to inflict terror and insecurity both at the

national and international realms.94

The government and its security agencies have had to look for ways of harnessing the

blogosphere in a bid to monitor and conduct security surveillance in the event that the

criminal elements seek to make an insurgency and disrupt national security and public order.

The military for instance, has been using the blogosphere to communicate the processes of

operations, boost the morale of soldiers who are in the battle field, clarify on propaganda

messages sent by the insurgents and therefore dispelling any rumours, updating civilians on

the progress of military operations and also in carrying out public relations.95

91
See The Constitution of Kenya, 2010,Art. 238.
92
See Julius K. Social Media and National Security Threats: A case study of Kenya (2014) (Masters Degree
Dissertation, Nairobi University).
93
Ibid.
94
Ibid.
95
See supra n.89.
27
Apart from the criminal elements that are hell bent towards causing insecurity, individuals

who may not be having the intention of destabilizing public order and national security use

the blogosphere to send alarming and hate messages, which are materially, false to the

public regarding state of national security.96 Most of these bloggers remain anonymous and

cannot be easily traced by law enforcement agencies and in turn face subsequent prosecution.
97
The government and indeed its criminal justice system is therefore faced with an uphill task

in tracking, monitoring and containing the use and abuse the blogosphere in relation to state

security and public order.98

National security in such a state of affairs, demands the implementation of a strategy that

includes monitoring conversations and content shared on the blogosphere, devising effective

methods aimed at countering propagandists, and improving the performance of the security

apparatus while responding to security threats emanating from the blogosphere. This, in

essence, calls for a system of regulation which is state-sponsored in nature in order to secure

national security and public order in Kenya.

3.4 The Blogosphere and the Law of Defamation in Kenya

The freedom of expression has previously been seen as the right to defiantly, robustly and

irreverently speak ones mind just because it is ones mind.99This sentiment appears to inform

the boldness and temerity that has engulfed the Kenyan blogosphere, lately, especially on the

front of character assassination and defamation.

96
See supra n.89.
97
See Declan McCullough, Bloggers as Journalists in New Media: The Press Freedom Dimension Challenges
and Opportunities of New Media for Press Freedom, UNESCO (2007)(report of the panel) p.63 online
<docplayer.net/911249-New-media-the-press-freedom-dimension.html>at 21st January 2016.
98
See supra n.89.
99
See Jacqueline M., Hashtags will not release our bloggers, knowledge of the Law will! (2016) CIPIT Law
Blog online at <https://cipitblog.wordpress.com.2016/02/01/hashtags-will-not-release-our-bloggers-knowledge-
of-the-law-will> accessed on 29th February 29, 2016.
28
The Constitution of Kenya, 2010 is the foundational bedrock upon which the law of

defamation emanates.100 This law serves to provide the limits within which the freedom of

expression may be exercised. Apart from the constitutional provision, defamation in Kenya is

governed by a regime of common law which is further modified by the Defamation Act.101It

is both a crime and a tort whose aim is to disparage an individual in his office, profession,

calling, trade or business or imputing unchastity to any woman or girl or in relation to title,

good or other malicious falsehoods which are calculated to cause pecuniary damage to an

individual.102

Lately, bloggers have been going against the law by writing defamatory posts against

individuals and organisations. Indeed, the number of bloggers who have been arraigned in the

courts of law for defaming others has been on a steady rise.103Besides this, people from

different walks of life have flocked the courts with a view to seeking compulsive orders upon

intermediaries to take action against defamatory content about them posted online.104 An

example of this is the ongoing intermediary liability case pitting former Devolution Cabinet

Secretary, Anne Waiguru on one side and Google Inc. and Google Kenya on the side105 in

which she claims to have been defamed by a story that ran on the Daily Post, a Kenyan news

and gossip blog and therefore seeks, among other prayers, to have the offensive article taken

down.

100
See The Constitution of Kenya, 2010 Art 33(3) which requires that in the exercise of the right to freedom of
expression, every person shall respect the rights and reputation of others. In essence, this is the golden rule!
101
The Defamation Act, Cap 36 of The Laws of Kenya is an Act of Parliament that consolidates and amends the
statute law relating to libel; other than criminal libel, slander and other malicious falsehoods.
102
See The Defamation Act, Cap 36 s.36.
103
For example, renowned lawyer, Snr. Counsel Paul Muite is on record to have sued Moses Kuria, an activist
(as he was then), for defamatory posts that were made on his blog.
104
See Freedom House Kenya, Freedom on The Net (2015). Online at
<www.freedomhouse.org/report/freedom-net/2015/Kenya/> accessed on 29th February 29, 2016.
105
See Anne Waiguru v Google Inc. and 2 others (petition 333 of 2014) eKLR.
29
From the foregoing, much is left to be desired. Questions arise as to whether these instances

are a result of ignorance of the law or a lack of stringent regulatory mechanism. The

pendulum swings to the latter.

3.5 The Blogosphere and the Question of Morality in Kenya

Ethics and morality have been said not to be about an individuals feelings, religious beliefs

or doing what the law requires or the standards that our society accepts.106Instead, it is about

a well-founded standard of right and wrong that prescribe what one ought to do in terms of

rights, obligations, and benefits to the society, fairness or specific virtues.107

The proliferation of the blogosphere and its wider acceptance and use in Kenya, raises a

number of ethical and moral concerns. Such concerns revolve around the overreliance on user

trust in order to achieve compliance with policy provisions, the lack of sound government

policy interventions with regards to social media and especially the use of the blogosphere

and the lack of provisions made by service providers for compensation when users rights are

violated.108

The aforementioned concerns arise due to the fact that the onus of ensuring compliance with

the set duties and obligations has been largely entrusted to the user while the policy

guidelines of major social media platforms including the blogosphere explicitly indemnify

the providers from liability in the event of any litigation arising out of breach of rights of

their users or other parties.109

In response to this need, the most notable intervention that has been carried out is the plain

urge that has always been put to bloggers and other social media users to practice responsible

blogging while seeing to it that the moral fibre does not wax out. This in itself is not
106
See Stephen M., Ethical and moral aspects of social media: implications for sub-Saharan Africa (2012) a
paper presented at the SCECSAL Conference.
107
Ibid.
108
See supra n.103.
109
Ibid.
30
sufficient. There is therefore a need to establish a policy and legal framework that will

address itself to the waning moral fabric that is propagated by a wild blogosphere in Kenya.

3.6 Response of the Government of Kenya to the Excesses of the Blogosphere

Lately, there has seemed to be an upward surge by the government of the day to crack down

on bloggers who put up content in their blogs which is often considered as being offensive or

a threat to national security.110Those affected mostly are those who share information

touching on senior government officials and their alleged corrupt dealings while others are

those who share data that is considered to be sensitive by the security agencies.111

The government has often swiftly responded by rounding up the suspected errant bloggers

and pressing upon them a myriad of charges in the courts of law, the most notorious charge

being the misuse of a licensed communication gadget contrary to the provisions of section

29 of the Kenya Information and Communication Act.112

This move has always proven to be counterproductive. Instead of achieving the intended

purpose of suppressing the work of these bloggers, it has raised their profiles and online

traffic to levels that the government operatives cannot fathom. Besides, these bloggers

suddenly turn to be the poster-boys of what the Human Rights activists term as a systemic

deliberate move by the government to claw back the freedoms and gains of the Constitution

of Kenya, 2010.113

110
See John Walubengo, Kenya: Not Every Blogger is Worth the Governments Time All Africa 2nd
February, 2016.Online at <allafrica.com/stories/201602020909.html> accessed on 1 st March 2016.
111
See Supra n.107.
112
This section provides that a person who, by means of a licensed telecommunication system sends a message
or other material that is grossly offensive or of an incident, obscene or menacing character or sends a message
that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another
person commits an offence and is liable on conviction to a fine not exceeding fifty thousand shillings or to
imprisonment for a term not exceeding three months or both.
113
See supra n.107.
31
It remains to be seen whether this kind of intervention by the government would bear any

desirable fruit. Indeed the contention is not whether the prosecutions are a welcome move or

not, but whether there is a better way of handling errant members of the Kenyan blogosphere.

3.7. Conclusion

As the Kenyan blogosphere keeps expanding, it keeps pausing various challenges ranging

from threats to national security to the weakening of the moral fabric that holds this country

together. The government of Kenya has responded to these challenges, albeit in a manner that

does not appear satisfactory and therefore wanting before the eyes of the civil society, Human

Rights activists, the general populace and the opposition.

The next chapter is a comparative study carried out on the American jurisdiction with a view

to distilling out the best laws and practices that Kenya can adopt while combating the

challenges brought about by its budding blogosphere.

32
 CHAPTER FOUR

Comparative study: Regulation of the Blogosphere in the American Purview

4.0 Introduction

The blogging phenomenon in the United States has grown so rapidly that it has become a

powerful driving force not only in the countrys geopolitics but also in the strengthening of

its cultural and moral fabric.114Indeed, political bloggers in this country are seen as the new

powerbrokers in its politics and culture.115

Despite the fact that the American Telecommunications Act of 1996 expresses the policy of

the United States as being aimed to, inter alia promote the continued development of the

internet and to preserve the vibrant and competitive free market that presently exists for the

internet and other interactive computer services, unfettered by Federal or State

regulation(emphasis mine),116 the state of the blogosphere in the United States of America

has seen a number of efforts being put in place with a view to reshaping it and further

bringing it to the subjection of a fleet of both State and Federal Laws.117

True to this, bloggers in the American jurisdiction have had to contend with veritable

landmines of potential legal issues ranging from those that touch on the provisions of the

1stAmendment of the American Constitution118 to issues relating to the conduct of businesses

especially on the advertising and marketing front. These set of facts have been exacerbated

114
See Sunny Woan, The Blogosphere: Past, Present and Future. Preserving the Unfettered Development of
Alternative Journalism (2008) 44 California Western Law Review. Online at
<htttp://scholarlycommons.law.cwsl.edu/cwlr/vol44/iss2/4> accessed on 4 th April, 2016.
115
Ibid.
116
See Telecommunications Act of 1996, 47 U.S.C.
117
See online at <www.avivadirectory.com/blogger-law/> accessed on 5th April, 2016.
118
The First Amendment of the American Constitution provides for, among other things, that the Congress shall
make no law that would abridge the freedom of speech or of the press. See online at
<constitution.findlaw.com/amendment1/annotation06.html> accessed on 5 th April, 2016.
33
by the realization that the law touching on the operation of the blogosphere in the United

States of America has constantly been in flux.119

This chapter is therefore an in depth review of blogosphere regulation in the United States of

America compared to that in Kenya with a view to distilling out best practices that would be

applicable in furtherance of the regulation of the blogosphere in Kenya. Further, this chapter

will address itself near-exhaustively, to such thematic concerns as the exercise of anonymous

speech in the blogosphere, cyber bulling and other crimes (including hate speech) in the

blogosphere, copyright protection in the blogosphere and paid up blog posts and consumer

protection in the blogosphere.

4.1 Anonymous Speech in the Blogosphere

4.1.1 Anonymous Speech in the American Blogosphere

Anonymous speech has been a prevalent phenomenon in the use of the internet especially

among bloggers.120 Incidentally, courts world over, and most notably in Kenya121 and the

United States of America122 have been called into action to allow for the unmasking of the

identities of bloggers who could be parties to legal suits emanating from their blog posts.

The right to speak anonymously in the American blogosphere has been recognized as being

part of the First Amendment right to free speech.123With this in mind, it has often been stated

that some level of scrutiny ought to be employed before an anonymous speaker in the

blogosphere is stripped off this right.124Alongside this assertion, those who are harmed by

119
See supra n. 117.
120
See online at <www.rcfp.org/browse-media-law-resources/digital-journalists-legal-guide/anonymous-online-
when-must-identity-of-a-masked-commentator-be-revealed/> accessed on 5th April, 2016.
121
See supra n.105.
122
See generally for instance the American case of Doe v. Cahill, 884 A.2d (Del. 2005) in which the defendant
is said to have anonymously posted allegedly defamatory statements against the plaintiff on an internet blog.
The plaintiff while seeking to serve process on the defendant, sought to compel the disclosure of his identity
from a third party, a matter which was now subject to the ruling of the court in this particular case.
123
See online at <www.dmlp.org/legal-guide/legal-protections-anonymous-speech> accessed on 5th April, 2016.
124
Ibid.
34
some illegal anonymous speech which may present itself inform of defamation or any other

form, have a right to seek redress for compensation for such an injury caused.125

The unmasking of anonymous speakers in the American blogosphere is not an arbitrary

process whatsoever. In this regard, courts have come up with strict requirements that must be

met in order for the anonymity of the blogger to be stripped off.126For instance, the courts

strictly require that a plaintiff seeking to unmask an anonymous blogger must first make a

substantial legal and factual case showing that their claim merits the unmasking of the

anonymous blogger.127Further, the courts require that the plaintiff sufficiently notifies the

anonymous blogger of his intention to unmask him and provides adequate time for the

blogger to respond.128

4.1.2 Anonymous Speech in the Kenyan Blogosphere

The status of the protection of online speakers in the Kenyan blogosphere remains bleak and

amorphous, without any traceable legal mechanisms of regulation. Despite the fact that

Kenya subscribes to various international human rights instruments which recognize the

freedom of expression to be including the freedom to speak anonymously,129 there are no

recognizable deliberate efforts, be they in the legislative realm or judicial decisions, just like

it is in the American legal system, that seek to regulate the manner in which anonymous

bloggers may be unmasked in the event that there has arisen a need to do so. This leaves the

Kenyan blogosphere appear as though it is a jungle where arbitrariness thrives.

125
See supra n.123.
126
Ibid.
127
Ibid.
128
Ibid.
129
See online at <docplayer.net/8762722-Freedom-of-expression-privacy-and-anonymity-on-the-internet.html>
accessed on 6th April, 2016.
35
To illustrate this arbitrariness, the Kenyan case of Anne Waiguru v Google Inc. and 2

others130is on point. In this case, the plaintiff moved the court to compel the first defendant to

unmask and indeed give the personal details of the third defendant without necessarily

establishing a prima facie case, as would be in the American courts scenario.

4.2 Cyber Bullying and other Crimes in the Blogosphere

4.2.1 Cyber Bullying and other Crimes in the American Blogosphere

Cyber-crimes have been on the rise lately as more and more criminals have ventured into the

blogosphere and are taking advantage of the transformed digital technology, increased

internet speeds, convenience and anonymity of the internet to commit the crimes.131

The American legal set up identifies any person who is under the age of eighteen years as a

likely victim of cyber bullying.132Such bullying is said to manifest itself in the form of

threats, humiliation, and harassment by use of technology.133

Cyber bullying has had devastating effects in the American society. A case on point to

illustrate this is the Megan Meier Case in which a thirteen year old from Missouri committed

suicide by hanging herself after some individual identifying himself as Josh Evans, a 16-

year old boy sent her emotionally distressing messages which he also posted on other online

blogs.134 Josh later was identified as Lori Drew, Meiers 47-year old neighbour and was

indicted in 2008 and later on acquitted.135

For a long time in the past, America did not have laws that would deal with cyber bullying

since this crime was addressed under the already existing legislation dealing with stalking,

130
See supra n.105.
131
See online at <www.interpol.int/Crime-areas/Cybercrime/Cybercrime> accessed on 6th April, 2016.
132
See online at <sites.duke.edu/cyberbullying/> accessed on 6 th April, 2016.
133
Ibid.
134
See supra n.132.
135
Ibid.
36
slander and libel.136With the imminent danger paused by cyber bullying, there have been

attempts to legislate against cyber bullying at the Federal level, albeit with lots of difficulty.

For instance, a weak Childrens Internet Protection Act requires that institutions adopt certain

measures aimed at protecting minors from online content that can harm them.137This does not

necessarily protect the minors from cyber bullying since they can still access chat rooms and

other blog posts from their homes.

Alongside cyber bullying, the American cyber space, and indeed the American blogosphere

has been awash hate mongering. At this point, it should be noted that legislatures world over

have heeded to the call of legislating against hate speech in the internet except in the United

States where the First Amendment to the Constitution prohibits broad regulation of

speech.138Notwithstanding the fact that there are no blogosphere-hate speech-specific laws in

America, existing laws that out rule direct threats or incitement to violence or terrorism have

always been used against online hate mongers.139It is yet to be seen whether the American

legislative body will rise to occasion and toe the line to legislate against hate speech in the

American blogosphere.

4.2.2 Cyber Bullying and other Crimes in the Kenyan Blogosphere

The Kenyan blogosphere is under a threat from cyber-related crimes as the use of the internet

has become part of the countrys middle class populace.140These crimes have thrived lately,

thanks to the ever growing blogosphere. They manifest themselves as most notably, cyber

bullying and hate speech.

136
See supra n.132.
137
Ibid.
138
See Christopher Wolf, Hate in the Information Age (2008) ADL. Online at <archive.adl.org/main
_internet/hate_information.html> accessed on 7th April, 2016.
139
Ibid.
140
See Jeff Otieno, worries over new avenues of cyber-crime The East African, 23rd Sept, 2014. Online at
<www.ntv.co.ug/news/science-technology/23/sep/2014/worries-over-new-nw-avenues-cyber-crime/> accessed
on 7th April, 2016.
37
Kenya, unlike her American counterpart has come out strongly to legislate against this two

crimes taking place in her blogosphere. This is despite strong arguments being put against the

formulation of such legislation to the effect that such laws are perhaps the least effective way

to deal with such problems as they create a false sense of security while they promote

inaction and the underuse of alternative and more effective available tools to fight online hate

and cyber bullying.141

The Constitution of Kenya, 2010 for instance provides that the right to the freedom of

expression does not extend to hate speech or advocacy of hatred and further requires that the

exercise of such a right is subject to the respect of other peoples rights and reputation.142The

supreme law of the country, therefore unequivocally outlaws hate speech and cyber bullying

among other speech-related crimes in the Kenyan blogosphere.

In response to increased cyber-crimes in its blogosphere, Kenya has responded legislatively

through the proposed Cybercrime and Computer related Crimes Bill (2014) which is aimed at

sealing the legislative loopholes which make it possible for criminals to orchestrate various

crimes including hate through the blogosphere.143 Further, The National Cohesion and

Integration Act of 2008144 has been used to bring to book those who are suspected to be

promoting hate in the country, most of them being bloggers.

141
See supra n. 138.
142
See The Constitution of Kenya, 2010 Art 33(2) (3).
143
See online at<www.nation.co.ke/news/cyber-crimes-rise-Kenya/-/1056/2814064/-/aarhdxz/-/index.html>
accessed on 7th April, 2016.
144
This Act defines hate speech as any speech that is threatening, abusive or insulting or involves the use of
threatening, abusive or insulting words with the intention of stirring up ethnic hatred or a likelihood that ethnic
hatred will be stirred up.
38
4.3 Copyright Protection in the Blogosphere

4.3.1 Copyright Protection in the American Blogosphere

The term copyright connotes the idea of a right to copy works of a kind protected by law, be

they literary or artistic.145 This right is exclusively vested in a person in relation to every

work, so that only with that persons (right-holders) permission can anyone else copy such

work.146 In essence therefore, if any copying is done without permission, such copying is

rendered wrongful.

The rapid growth of the American blogosphere has attracted the intervention of American

Copy right law. Indeed the law in this country treats blog posts which have been primarily

created and fixed in a tangible form that can be perceived either directly or by help of a

device as being copyrighted work.147

Notwithstanding the fact that every bloggers piece of writing is copyrighted, the law requires

that in the event of an infringement and in the event that one intends to lay a claim as against

another regarding the infringed copyright, the individual bloggers work must first be

registered with the United States Copyright Office.148Then and only then can a remedy be

sought and subsequently be granted.149

There are exceptions to the assertion that all blog posts are treated as being copyrighted. For

instance, works made for hire are squarely not treated as being the property of the maker but

that of the hirer.150Further, a blogger may attach a Creative Commons License151 to their

145
See Hector M. et al, Law and the Internet (3rded, 2009) p 191.
146
See supra n. 145.
147
See Michelle Fabio, Blogging and Intellectual Property Law (2011) Legal Zoom. Online at
<www.legalzoom.com/articles/blogging-and-intellectual-property-law> accessed on 8th April, 2016.
148
Ibid.
149
Ibid.
150
See supra n.147.
151
A creative common licence is one of the several public copyright licences in America which enables the free
distribution of an otherwise copyrighted work. See online at <sarafhawkins.com/creative-commons-licenses-
explained-plain-english/?utm_source=www.inbound.org> accessed on 11th April, 2016.
39
piece of work in order to allow others to use and/or copy their work.152Suffice it to note, once

the creative commons license has been attached, one can choose their level of protection

which may include whether or not they allow commercial use or modification of their

work.153

From the foregoing, the United States America seems to have made great strides towards

achieving intellectual property protection in her blogosphere. It can only be desirous of every

one of us to see whether further improvements can be made on this front.

4.3.2 Copyright Protection in the Kenyan Blogosphere

The Constitution of Kenya, 2010 provides the foundational basis for copyright protection in

the Kenyan blogosphere. The supreme law of the country specifically requires that the State

shall promote the intellectual property rights of the people of Kenya.154

Further, the Copyright Act, 2001155which is implemented by the Copyright (Amendment)

Regulations, 2011 provides the statutory cornerstone through which the intellectual property

rights of bloggers, as contemplated in the Constitution,156 may be protected. Section 2(1) of

the Act157 defines literary work to include such works (which most bloggers in the country

delve in) as stories and poetic works, film sceneries and broadcasting scripts, treatises,

histories, biographies, essays, articles, lectures, encyclopaedias, addresses and sermons.

In this regard, it appears therefore that Kenya has an already established legal framework for

the protection of copyrights even in her blogosphere. Besides, Kenyan courts have not been

served with an array of litigations especially on this area and therefore the ability of the

existing legal framework to fully address this up surging need remains to be tested.

152
See supra n.147.
153
See supra n. 147.
154
See The Constitution of Kenya, 2010Art 11(c).
155
This is an Act of Parliament that makes provisions for copyright protection in literary, musical and artistic
works, audio-visual works, sound recordings and broadcasts.
156
Ibid.
157
See The Copyright Act, 2001.
40
4.4 Paid up Blog Posts and Consumer Protection Law

4.4.1 Paid up Blog posts and Consumer Protection Law in America

Consumer protection law is said to be an avenue through which consumers of various goods

and services can wrestle against abusive business practices. 158These laws are generally

helpful to consumers who are, in most cases, disadvantaged by information asymmetry in the

market regarding the available goods and services.159

Part of the information asymmetry that exists in the markets emanates from false and

fraudulent advertisements.160Advertising is an essential part of the competitive process in the

market. Unless the consumer knows what goods and services are on offer and what their price

is, he will be unable to choose what to buy and competition between the suppliers will be

diminished.161

An American state agency known as The Federal Trade Commission is entrusted with the

soul mandate of fighting fraudulent, misleading and unfair business practices in whichever

front.162

In a bid to create transparency for consumers and regulate the still-evolving blogging

industry, the commission163has developed guidelines that regulate the relations between

advertisers and bloggers as well as consumers and bloggers.164

An eye-catching part of the regulations requires that bloggers who have been paid to make

endorsements of products or to advertise the products have to unequivocally disclose their

158
See online at <www.hg.org/consume/html> accessed on 11th April, 2016.
159
Ibid.
160
Ibid.
161
Ibid.
162
See Kristen R., Advertising and Blogs: New American Regulations (2009) Vanksen. Online at
<www.vanksen.com/blog/advertising-and-blogs-new-american-regulations/> accessed on 11th April, 2016.
163
The Federal Trade Commission.
164
See supra n.162.
41
relationship with the advertisers.165This is important to avoid instances where bloggers who

have been paid to make the blog posts, mislead unsuspecting consumers regarding the quality

of the products they are endorsing or advertising. It should further be noted that a failure to

make such contemplated disclosures attracts hefty fines.166

Suffice it to note, The Federal Trade Commissions guidelines are generally viewed as being

an administrative interpretation of the applicable law167 whose intention is to guide

advertisers especially in their relations with the budding blogosphere. 168 In this regard

therefore, if there be a breach of the guidelines, there has to be a sufficient proof to the effect

that the applicable law169 has, materially and fundamentally been breached so as to warrant a

successful prosecution.170

Following the aforementioned, consumer protection in the American blogosphere cannot be

second-guessed or gainsaid.

4.4.2 Paid up Blog posts and Consumer Protection Law in Kenya

The Constitution of Kenya, 2010 provides the primary legal basis for the protection of

consumers in the country.171Further, The Competition Act, no.12 of 2010 provides the

statutory guideline through which the rights of consumers may be protected.172

Despite the fact that Kenya has a robust legislative framework on consumer protection, the

framework goes short of addressing the new front of advertising products-the blogosphere. In

this regard, advertiser-blogger and blogger-consumer relationships seem to have taken the

165
See supra n.162.
166
Ibid.
167
The applicable American law on regulation of business practices is the Federal Trade Commission Act which
empowers the Federal Trade Commission to, inter alia prevent unfair methods of competition and unfair or
deceptive acts or practices in or affecting commerce.
See online at < htpp://www.law.cornell.edu/uscode/text/15/41> accessed on 11 th April, 2016.
168
See supra n.162.
169
Ibid.
170
See supra n.162.
171
See The Constitution of Kenya, 2010 Art 46 which provides, as part of the Bill of Rights, the rights of
consumers.
172
See The Competition Act, No 12 of 2010, s.55.
42
Laissez-faire approach173 where the consumers are always alive to the buyer-be-ware

clarion since there is no known legislation which requires the disclosure of paid up blog

adverts and endorsements.

4.5 Conclusion

The United States of America, a country that prides in rich and vast jurisprudence in a

number of areas, has made big strides in the furtherance of the freedom of expression

especially in her blogosphere. This is seen in her approach to legislating against the exercise

of anonymous speech, where at all times the law is interpreted to the benefit of the

anonymous speaker; total lack of legislation touching on hate mongering in the blogosphere

and little efforts made in legislating against cyber bullying; far reaching regulations with

regards to copyright protection and lastly on this discourse extensive legislation on consumer

protection within her blogosphere.

Suffice it to note, Kenyas legal system in as far as the freedom of expression within her

blogosphere is concerned, is somewhat an antithesis of what happens in America. For

instance, there are far reaching legislations touching on hatemongering and other cyber-

crimes while the regimes on consumer protection and copy right protection within the

blogosphere are so wanting.

Nonetheless, Kenya can pick glowing lessons from her American counterpart to further

inform the formulation of important regulatory mechanisms that would tame the irate

bloggers. The next chapter therefore draws a conclusion and posits various solutions to the

pressing urge to regulate bloggers by looking into the need for a definitive legal framework to

that end and proscribing constitutionally sound regulatory practices on the ever-growing

blogging industry, going forward.

173
This approach connotes a scenario where the government abstains from interfering with the workings of the
free market.
43
 CHAPTER FIVE

Conclusions and Recommendations

5.0 Introduction

The blogosphere, as has been contended throughout this research paper, is on a steady growth

trajectory world over and specifically in Kenya. Despite its enormous contributions to the

democratization process, it has been viewed to be a fountain of various challenges including,

but not limited to insecurity and, as lately claimed, a meltdown in the banking sector of the

country. 174

There have been propositions to the effect that the blogosphere ought to be regulated, in order

to bring sanity to the seemingly wild bloggers while other schools of thought view the

proposers of this assertion as being hell bent towards unconstitutionally encroaching on the

sacrosanct freedom of speech and by extension, freedom of the press.

This research paper has sought to demonstrate that a sound form of regulation which is not

arbitrary is requisite for a budding democracy of Kenyas stature. This chapter is therefore a

summary of the issues canvassed in this research paper, coupled with possible solutions to the

question of regulation of the blogosphere in Kenya as illustrated hereunder:

5.1 Conclusions

Chapter 1 of this paper has laid bare the line of thinking that has been pursued, near-

exhaustively, throughout the penning down of the entire research paper. This chapter, in its

statement of the problem, underscores the existing lacuna in the regulation of the Kenyan

blogosphere. Further, it is in this chapter that research questions that informed the writing of

the subsequent chapters are raised. For instance, such questions as to whether the freedom of

expression of bloggers is subject to similar regulations as those under which professional

174
A blogger, who, while acting as a whistleblower, sent a secret letter to investors, a result of which led to the
collapse of Chase Bank. See online at <www.nation.co.ke/news/How-whistleblowers-letter-brought-Chase-
Bank-to-its-knees/1056/3152818/-/9tl34d/-/index.html> accessed on 12th April, 2016.
44
journalists are put, how the legal framework regulating the activities of bloggers in Kenya

looks like, how the United States of America has addressed the growing New Media and the

challenges it poses, especially on the widely celebrated freedom of expression and what

important lessons Kenya can draw from the United States have been answered in the

subsequent chapters.

Chapter 2 has explored the existing legal framework in Kenya, which forms the basis for the

enjoyment of the freedom of expression by bloggers in the country. An evident fact from this

chapter is that the freedom of expression is a fundamental human right which is well

entrenched in the countrys domestic legal framework as well as in international treaties and

conventions to which Kenya is party. It is a glaring fact from this chapter that the freedom of

expression, as enjoyed by bloggers is not an absolute freedom but one that ought to be

enjoyed, albeit with commensurate restraint.

Chapter 3 is a situational assessment of the state of blogging in Kenya. This chapter

underscores the roles played by Kenyas blogosphere, while at it, highlighting some of the

challenges emanating from the blogosphere and how the Kenyan government has responded

to them. A revealing fact from chapter three is that, the responses from the government have

been squarely lacking in form and substance and therefore require reformulation in order to

meet the international standards of regulation.

Legislations and policies from the American jurisdiction have informed the letter of chapter 4

of this research paper. Such thematic concerns as cyber bullying and cybercrimes, the

exercise of anonymous speech in the blogosphere and consumer protection ion the

blogosphere formed a basis for the establishment of the existing chiasmus in the Kenyan legal

system that needs to be filled up. Indeed, this chapter has shown where Kenya can improve

with regards to blogosphere regulation.

45
5.2 Recommendations

Going forward, the following, if undertaken, will facilitate the formulation of an informed

and sound regulatory mechanism of the Kenyan blogosphere:

i) Creation of a legal mechanism to regulate advertising and consumer protection

Borrowing a leaf from their American counterparts, Kenyan policy makers and legislators,

should see to it that a legislation setting up a government agency analogous to the Federal
175
Trade Commission of America with powers to regulate advertising through social media

and especially the blogosphere is in place. Such a commission, if created, will then be tasked

with coming up with guidelines that would be aimed at protecting consumers and promoting

sanity in the blogosphere. Such guidelines may include among others, requirements for

disclosure of blogger-advertiser relationships, provisions for penalties such as fines or

imprisonment in the event of non-disclosure.

ii) Interpretation and Enforcement of Laws relating to cyber crimes

The existing laws in Kenya are overly sufficient in addressing such vices as hate speech,

cyber-bullying and defamation. However, to facilitate the enjoyment of the freedom of

expression in the blogosphere, these laws have to be interpreted generously and

purposively176 to the advantage of bloggers so as not to curtail their freedom even in

instances where it is not a matter of necessity. It should be remembered by the law enforcing

agencies that reflexive use of the law as a tool of first resort in dealing with any malfeasance

175
See supra n. 167.
176
See Rotich Samuel Kimutai v Ezekiel Lenyongopeta and 2 others (2005) eKLR where the Court of Appeal
observed that whenever strict interpretation of a statute would give rise to an absurd and unjust situation, the
judges can and should use their good sense to remedy it- by reading words in, if necessary-so as to do what
parliament would have done, had they had the situation in mind. This is what purposive and generous
interpretation is all about.
46
only serves to weaken respect for the law if such attempted law enforcement fails or is used

against minor violations.177

iii) Protection of the news gathering process

In order to facilitate regulation in the blogosphere, law makers should come up with laws and

policies that protect the process of newsgathering by bloggers rather than those that seek to

protect professional credentials, experience or status. While the available policies and
178
regulations protect professional journalists only, there is a need to make an amendment to

such guidelines so as to capture the budding blogosphere. In this regard, the said laws and

policies will therefore not be used as a means of de facto government licensing and a

subsequent means of authorised government censorship on the blogosphere.

iv) Role of Civic Education in regulation of the Blogosphere

Finally, it must be noted that the fate of the efforts to regulate the blogosphere and bring

sanity to its errant members in Kenya rests on the ability of the Kenyan society and the

government in particular to effectively educate and sensitize the people on proper use of the

blogs without necessarily jeopardizing, for instance, the state of security of the nation while

at the same time looking into ways (that are non-coercive) of imparting ethics in the

blogosphere. In this respect therefore, the government, through the relevant state department,

should consider educating masses on responsible blogging. This would, perhaps, instill ethics

among bloggers and irk the desire in them to be responsible citizen journalists.

177
See supra n. 138.
178
See the provisions of the Code of Conduct for the Practice of Journalism in Kenya which specifically bind
journalists, media practitioners, foreign journalists and media enterprises and therefore expressly excludes
bloggers who are often times referred to as citizen journalists. Online at
<www.mediacouncil.or.ke/en/mck/index.php/code-of-conduct-for-the-practice-of-journalism> accessed on 30th
May, 22016.
47
 BIBLIOGRAPHY

Books

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53