Kenya - IFEX

Impunity looms one year after Arshad Sharif’s murder in Kenya

Marianna Tzabiras — Wed, 25 Oct 2023 21:16:22 +0000

This statement was originally published on rsf.org on 23 October 2023.

After investigating the circumstances of Pakistani journalist Arshad Sharif’s murder in Kenya one year ago, Reporters Without Borders (RSF) accuses the authorities in both countries of duplicity. What with opaque or misleading investigations, a lack of cooperation and failure to arrest suspects, everyone is trying to protect their interests at the expense of the truth about Sharif’s death and justice for his family.

Pakistan’s supreme court seems to have given up. After quickly taking responsibility for the Pakistani side of the investigation into Arshad Sharif’s murder in Kenya on 23 October 2022, in order to facilitate a case made complex by its transnational nature, Pakistan’s highest court has not held a single hearing on the subject since 3 June.

Officially, the lack of a mutual legal assistance agreement between the two countries is the cause of the blockage. Kenya has not transmitted the evidence it has gathered. Unofficially, “this situation benefits both countries, neither of whom is really willing to get to the bottom of this,” said a source familiar with the case who requested anonymity for fear of reprisals. During the past year, the various investigations have been marked by opaqueness and by sometimes crude attempts to steer them down false paths, as RSF observed in the course of its own investigation.

“A year after Arshad Sharif’s murder, no suspect has been arrested and no instigator has been identified. Kenya is protecting its police officers and Pakistan is deliberately steering clear of the possibility that its security services were involved. Without an independent international investigation, as we are requesting, this journalist’s murder is liable to remain unpunished.”

Arnaud Froger, head of RSF’s investigation desk

Sharif was one of the star presenters on Pakistan’s ARY News TV channel, where he was an outspoken critic of military influence in Pakistani politics. He fled to Dubai and from Dubai to Kenya because he feared arrest or the possibility of being murdered. He had received several death threats and around ten judicial complaints had been brought against him, including an accusation of “spreading hate against the military and the state’s institutions.”

After keeping a low profile since arriving in Nairobi, Sharif attended a barbecue near a ranch two hours from the capital on 23 October 2022. The ranch is owned by Waqar Ahmed, a Pakistani who has lived for a long time in Kenya and who had taken care of Sharif since his arrival. Sharif left the barbecue at around 8:30 p.m. accompanied by Khuram Ahmed, the host’s brother. As the car drove towards the main road leading to the capital, Kenyan police fired several shots at it, two of which were fatal for Sharif, as several autopsies confirmed.

Kenyan investigation minimises police responsibility

The Kenyan authorities initially blamed the shooting on a “case of mistaken identity.” Their claim that the police had installed a roadblock where the shooting took place in order to intercept a stolen vehicle has no credibility. RSF saw a photo of the stolen vehicle in a Nairobi police station. It was a white Mercedes Sprinter 311 CDI, a utility-type van. It is hard to imagine that the police could have confused it with the Toyota Land Cruiser in which Sharif was travelling. Furthermore, as RSF was able to observe at the site, the Land Cruiser was heading in the opposite direction to the one that the stolen vehicle should have been taking.

This absurd account caused an outcry. The Independent Police Oversight Authority (IPOA), which polices the Kenyan police, reported a few days later that the police officers involved had said in their statements that they fired on the Land Cruiser in response to shots coming from it. But nothing in the car or at the location indicated that Sharif or his companion were armed. No bullet cartridges were found at the roadblock. But the Kenyan police took the trouble to collect their own, which is very suspicious considering that the car they just fired on had refused to stop.

The IPOA’s final report has never been released. The Kenyan investigation seems to have come to a complete halt. In March 2023, a member of the IPOA told RSF that “it’s likely that our recommendations will include sanctions and prosecution” for the four police officers involved. Meanwhile, they continue to be free and are probably still in active service.

Thorough but slanted investigation in Pakistan

The investigations in Pakistan have also suffered from attempts to steer them down avenues designed to protect the interests of the country’s security forces. A joint team consisting of the head of the Federal Investigation Agency (FIA), which reports to Pakistan’s interior ministry, and the deputy chief of the Intelligence Bureau (the civilian counter-espionage agency), was sent to Kenya five days after Sharif’s murder. They produced a very detailed report nearly 600 pages long a few weeks later but it focused mainly on criticising the Kenyan investigation. Whereas it dismissed the possibility of a “case of mistaken identity”, it concluded to a “planned targeted assassination with transnational characters”, which was largely based on speculation rather than substantial findings.

The report only very briefly considered the possible involvement of members of the Pakistani security services although they were behind the threats that led Sharif to flee Pakistan. Meanwhile, it portrayed Waqar Ahmed, rather vaguely, as a “key figure” in the case and seemed to suggest he was a suspect because of his connections, in particular with the Kenyan intelligence services. But the report did not identify any serious motive for Ahmed. And several circumstances contradict the hypothesis of a “planned assassination” involving this “key figure.” They include the presence of many witnesses at the barbecue hosted by Ahmed, two sources who confirmed to RSF that the journalist left the ranch alive, and photos of the journalist’s body taken quickly by Ahmed himself once the Land Cruiser had reached a nearby location.

At this stage, it is unlikely that the investigations in Pakistan and Kenya will solve this murder. The lawyer representing Sharif’s wife is now asking the United Nations to support his attempt to force Kenya to cooperate more effectively with Pakistan. But in response to the prospect of having to follow proceedings that would take place partly in Kenya, the Pakistani prosecutor said at the last hearing on 3 June that Pakistan could not afford to spend “a million dollars” on a lawyer in Kenya. But Sharif’s wife has already filed a lawsuit in Kenya and engaged a lawyer who is costing one fiftieth of that amount, as her Pakistani lawyer pointed out.

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Kenya urged to “smell” the percolating disinformation industry

Marianna Tzabiras — Tue, 13 Jun 2023 18:56:28 +0000

This statement was originally published on cipesa.org on 13 June 2023.

Just over a year ago, Kenya was in the midst of a bitterly contested general election held in August 2022. The electoral period was characterised by hate speech and disinformation, which remain prevalent today. Indeed, recent studies have highlighted a booming disinformation industry in the country, fuelled by political, economic and personal interests with many actors including politicians, content creators, and citizens churning out hate speech and disinformation on social media platforms.

During the election period, disinformation and hate speech circulated widely as social media personalities and ordinary citizens on various sides of the political divide coordinated and shared inciteful and hateful content. Influencers with a large following on the platforms are often bankrolled by politicians to recruit and coordinate micro-influencers to develop common disinformation and hate narratives and push hashtags which often trend on social media. Further, social media trolls engage through Facebook posts, tweets and WhatsApp groups with targeted hate against ethnic communities such as the Kalenjin, Kikuyu and Luo, the ethnic communities of current president William Ruto, former president Uhuru Kenyatta, and former Prime Minister Raila Odinga, respectively.

Amidst the election-related disinformation blitz, social media platforms seemed to do either too little or nothing to stop the spread of harmful and illegal content. An investigation by Global Witness and Foxglove in June 2022 showed that Facebook failed to detect inflammatory and violent hate speech ads posted on its platforms in Swahili and English. Further, the investigation found that even after putting out a statement in July 2022 on its efforts to combat harmful content, including 37,000 pieces of Kenyan content removed from Facebook and Instagram for violating its hate speech policies, similar hate speech ads were later approved on their platforms.

Likewise, in July 2022 Twitter was blamed by local actors for profiting from its negligence by allowing its trending topic section to be exploited through paid influencers to amplify malicious, coordinated, inauthentic attacks to silence Kenya’s civil society, muddy their reputations and stifle the reach of their messaging. In September 2021, Twitter suspended 100 accounts from Kenya for violating the platform’s manipulations and spam policy after being found to have been tweeting pre-determined hashtags meant to misinform the public and attack certain personalities. In June 2022, the company suspended 41 accounts promoting the hashtag #ChebukatiCannotBeTrusted, which suggested that the then Chairperson of the Independent Electoral and Boundaries Commission (IEBC) was supporting one of the presidential candidates.

TikTok, which has gained popularity among younger audiences, has also come under scrutiny after disinformation and hate content was found on its platform ahead of the August 2022 election. A study by Mozilla found 132 videos that had been viewed collectively over four million times, which were spreading hate speech and inciting violence against some ethnic communities. Some also featured synthetic and manipulated content couched as Netflix documentaries, news stories and fake opinion polls or fake tweets aimed at triggering violence, fear and violence as was witnessed during the 2007 post-election period. According to the report, TikTok suffered context bias and its content moderation practices were not robust enough to tackle the spread of such content on its platform. TikTok has since removed the videos highlighted in the report.

According to Kenya’s hate speech watchdog, the National Cohesion and Integration Commission (NCIC), hate speech content is most prevalent on Facebook and Twitter. In July 2022, the NCIC ordered Meta to address hate speech and incitement on its Facebook platform within a week or face a suspension of its operations in the country. In August 2022, the Commission also found an increase in hate content on TikTok. Some of the hate and disinformation hashtags it identified on the various platforms included #RejectRailaOdinga, #Riggagy and #RutoMalizaUfungwe, which propagated falsehoods against candidates in the presidential election.

Some critics have argued that social media platforms have shown a consistent failure to adequately moderate content in Kenya. Furthermore, the platforms’ attempts at content moderation are implemented in a lacklustre, under-funded and opaque system that is neither participatory nor rights-respecting. Other studies have also shown that platforms continue to inconsistently enforce their own rules through flawed content moderation practices and in essence permit the spread of extreme, divisive and polarising content partly due to their lack of understanding of Kenya’s cultural context and local languages and slang.

The government’s attempts at legislating on disinformation and hate speech have not been without setbacks. In 2018, the Computer Misuse and Cybercrimes Act, 2018 was adopted, imposing punitive fines and prison terms on the publication of false information and false, misleading and fictitious data. Unfortunately, these provisions have been unjustly used to target bloggers for exposing corruption or seeking state accountability.

A case by the Bloggers Association of Kenya challenging the constitutionality of the law remains pending an appeal of the decision by the High Court in February 2020 allowing the enforcement of the law. Section 13 of the National Cohesion and Integration Act constricts the definition of hate speech to “ethnic hatred” and fails to capture the constitutional limitations under Article 31, which include propaganda for war, incitement to violence, hate speech, and advocacy of hatred. This means various hate speech content remains lawful in the absence of a clear criminal prohibition.

Moreover, the NCIC, which was formed following the 2007 post-election violence, has been plagued by numerous challenges in its attempt to fight hate and promote peace and national cohesion. The commission for most of its active life has been underfunded, thus hindering its ability and capacity to monitor hate speech online, investigate incidents and conduct public awareness and engagements. Further, political interference with its work means that it has been incapable of enforcing the law to get successful convictions of offenders who are mostly the political elite.

More importantly, successive government administrations have failed to implement the recommendations of the Truth Justice and Reconciliation Commission (TJRC) report to address the drivers of hate and disinformation. The report identified those drivers as Kenya’s historical inter-ethnic tensions that are systemic and deep-rooted in its social, cultural, religious, economic and political fabric. Disinformation and hate speech in Kenya thrive on these unresolved historical tensions around political ideology, ethnicity, economics, and demography.

Today, a majority of social media users in Kenya are aware of and fuel hate speech and disinformation on social media. To some, it is all fun and games, as they assume no feelings get hurt. To many, however, disinformation triggers pain, fear, tension and hate. Last year, a local politician advised Kenyans to put matters of politics in their lungs, not their hearts. This attitude is also a problem, as such views may breed a level of acceptance and normalisation of disinformation and hate speech in the country by encouraging people to grow a ‘thick skin’ instead of objectively addressing the root causes of the vice. People, including Kenyans, are known to act on their feelings. As we have seen in neighbouring countries such as the Democratic Republic of Congo, Ethiopia and Sudan, hate speech and disinformation can drive violence with devastating consequences.

The failure to resolve Kenya’s underlying tensions means the country risks further social division and fragmentation of society as well as diminished progress due to a continuation of governance policies and practices that further entrench discrimination and exclusion in accessing opportunities, resources and essential services. The hate that arises from the effects of such policies and practices, and the disinformation deployed to justify and perpetuate them, affects people’s mental health and emotional well-being. Moreover, they cement long-held historical fears, suspicions and animosity that continue to undermine the ability of Kenyans to trust each other or the government and could inhibit the willingness of sections of the public to cooperate in nation-building for the common good.

Be that as it may, there are some promising efforts, such as the recently launched local coalition on freedom of expression and content moderation and the draft guidelines for regulating digital platforms spearheaded by UNESCO that seek to promote engagement and tackle content that potentially damages human rights and democracy. The multistakeholder coalition is an initiative of UNESCO and ARTICLE 19 that aims to bridge the gap between local stakeholders and social media companies and to improve content moderation practices, including supporting regulatory reform, building the capacity of state and non-state actors, and raising awareness on the ethical use of digital platforms. While these twin initiatives are new and largely untested, they present an opportunity to ensure more rights-respecting content moderation practices, the application of common norms based on human rights standards and stronger multistakeholder engagement in the content moderation process.

Finally, it may be easy to blame social media companies for the weaknesses in their content moderation systems, and by all means they need to be held to account. However, better algorithms alone cannot fix our society or our social norms. Kenyans must wake up and smell the coffee. Leaders need to drop the divisive acts and work together with stakeholders and citizens to address historical tensions and foster a culture of inclusion, tolerance, respect and understanding. While at it, they should promote responsible social media use, fact-checking, and media literacy in order to counter the negative impact of hate speech and disinformation and ultimately build a more just, harmonious, democratic and equitable society.

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Media targeted during violent protests in Kenya

Marianna Tzabiras — Mon, 03 Apr 2023 16:05:22 +0000

This statement was originally published on cpj.org on 31 March 2023.

In response to journalists being harassed, attacked, and arrested while covering mass anti-government protests in Kenya since March 20, the Committee to Protect Journalists issued the following statement calling for authorities to take action to protect members of the press:

“Journalists covering the ongoing protests in Kenya are carrying out a crucial public service, and authorities must support reporters instead of threatening or detaining them,” said Muthoki Mumo, CPJ’s sub-Saharan Africa representative. “Kenya’s regional reputation as a hub for the free press is at risk unless this aggression against the media is stopped, and attacks on journalists are credibly investigated and prosecuted.”

Since March 20, protests against the 2022 election of President William Ruto and declining economic conditions have been held by the opposition Azimio la Umoja political coalition twice a week, during which police and members of the public have harassed or assaulted members of the media and police briefly arrested two journalists, according to multiple news reports and statements from local media rights organizations.

Opposition leader Raila Odinga called for a boycott of a local newspaper, which he accused of “benefiting from the blood and tears of Kenyans,” on March 21, a move he rescinded two days later.

The Communications Authority, the country’s broadcast regulator, also threatened to revoke six TV stations’ broadcast licenses; on March 24, the Kenyan High Court suspended the regulator’s ability to revoke the licenses pending a hearing of a civil society application alleging that the authority acted illegally and unconstitutionally, according to news reports and court documents reviewed by CPJ. The authority said it would comply with the ruling.

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Social media companies are failing local communities on content moderation

Marianna Tzabiras — Fri, 24 Jun 2022 14:38:22 +0000

This statement was originally published on article19.org on 23 June 2022.

Social media platforms can be a space for free expression, democratic debate, and participation. But weak content moderation can transform them into hotbeds of ‘disinformation’, ‘hate speech’, and discrimination. This is especially concerning in post-conflict countries, where tensions between groups can erupt into violence.

ARTICLE 19’s new research investigates how content is moderated on major social media platforms in three post-conflict countries – Bosnia and Herzegovina, Indonesia, and Kenya – with a particular focus on ‘harmful content’ (such as ‘hate speech’ and ‘disinformation’).

Our research has found that social media companies don’t listen to local communities. They also fail to consider context – cultural, social, historical, economic, political – when moderating users’ content.

This can have a dramatic impact, online and offline. It can increase polarisation and the risk of violence – as when Facebook allowed incitement of genocide against Rohingya in Myanmar.

Bridging this gap between global companies and local communities is therefore vital to ensuring sustainable peace and democracy in post-conflict countries.

Read our

Global research summary report

Read our country reports

Bosnia and Herzegovina

Indonesia

Kenya

Global problem, local solution

ARTICLE 19, together with our research participants, has proposed a solution: local Coalitions on Freedom of Expression and Content Moderation.

These coalitions would allow consistent engagement between social media platforms and local civil society organisations, which would contribute to bridging the gap between global tech giants and local communities.

Our research provides more information on these coalitions. For each country, we outline practical steps for creating them, detailed risk assessments and potential members.

“A local coalition on freedom of expression and content moderation would bring together social media platforms and local civil society organisations. This would represent a win–win.

It would provide social media platforms with a one-stop shop where they could easily hear the concerns of local civil society.

And it would give a voice to local civil society actors affected by ‘disinformation’, speech that incites discrimination, and content-moderation decisions that overlook the local context.”

– Pierre François Docquir, Head of Media Freedom, ARTICLE 19

Edwin’s story

What are we asking social media companies to do?

Comply with international standards on freedom of expression and content moderation
Ensure content moderation reflects the local context
Publish comprehensive transparency reports
Participate in new, independent, self-regulatory mechanisms
Be easily accessible to local stakeholders

For more information on each of these action points please refer to ARTICLE 19’s statement

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AFEX condemns killing of Kenyan journalist and demands investigation

Marianna Tzabiras — Tue, 27 Apr 2021 00:15:49 +0000

This statement was originally published on africafex.org on 12 April 2021.

The African Freedom of Expression Exchange (AFEX) is profoundly dismayed by, and strongly condemns the gruesome killing of Betty Mutekhele Barasa, a journalist working with Kenya Broadcasting Corporation (KBC).

AFEX demands that the Kenyan authorities, as matter of urgency, investigate the murder of the journalist and bring to book the assailants and the masterminds of this crime. Kenya’s failure to do so will amount to condoning impunity for crimes against journalists, embolden other potential killers of journalists, and undermine the state of press freedom in the country.

On April 7, 2021, three assailants reportedly broke into the house of Betty Mutekhele Barasa, a senior video editor and television producer working for the Kenya Broadcasting Corporation (KBC), in Nairobi, the capital city of Kenya. The assailants took hostage the husband and children of Barasa, who was yet to return home from work and ransacked the house.

When Barasa arrived home, the assailants then assaulted her and shot her twice in the head, killing her instantly. The murderers also took away the journalist’s laptop and mobile telephone – an indication that the assault and the murder could be linked to her journalistic work.

AFEX sends its condolences to the family, friends and colleagues of Betty Mutekhele Barasa and mourns with the entire media fraternity in Kenya. We also condemn the dastardly and barbaric killing of the journalist.

Furthermore, AFEX urges the Government of Kenya to open a thorough and independent investigation into the murder of the journalist and ensure justice is served.

Any delay in investigating this killing to unravel the reasons behind this gruesome murder and to arrest and prosecute the culprits will cast doubt about the authorities’ commitment to fighting impunity for crimes against journalists. This could also spur on potential violators of freedom of expression and undermine media and journalists’ rights to play their constitutional role of informing the public, fighting corruption and bad governance, and promoting democracy and rule of law.

Members of AFEX:

ADISI-Cameroon
Africa Freedom of Information Centre
Association for Media Development in South Sudan
Center for Media Studies and Peace Building
Collaboration on International ICT Policy in Eastern and Southern Africa (CIPESA)
Freedom of Expression Institute
Gambia Press Union (GPU)
Human Rights Network for Journalists – Uganda
Institute for Media and Society
International Press Centre
Journaliste en danger
Media Foundation for West Africa
Media Institute of Southern Africa
Media Rights Agenda
West African Journalists Association

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Kenyan police director harasses staff at Royal Media Services

Marianna Tzabiras — Mon, 26 Apr 2021 22:25:52 +0000

This statement was originally published on cpj.org on 22 April 2021.

Kenyan police should cease harassing the Royal Media Services company and its Citizen TV broadcaster, refrain from summoning journalists for questioning, and ensure that members of the press can work without fear, the Committee to Protect Journalists said today.

On April 20, George Kinoti, the director of the National Police Service’s Directorate of Criminal Investigations, announced that he planned to summon a reporter and members of the senior management of Citizen TV for questioning, according to news reports and a statement by the Directorate of Criminal Investigations.

Kinoti accused Citizen TV of ethical breaches in an April 18 investigative report that alleged police were renting out firearms and uniforms to criminals, and called the report “false but injurious to the stability of the country” and a “deliberate, malicious attempt” to humiliate police and to create “public pandemonium,” according to the statement. Kinoti also accused the station’s reporters of illegally possessing firearms during their reporting of that story.

CPJ called Kinoti for comment today, but his phone was turned off or busy and he did not respond to a message sent via messaging app. His statement did not say when the Directorate of Criminal Investigations planned to issue a formal summons.

“Rather than treating members of the press like suspects and trying to intimidate them, the Kenyan police should be investigating the grave allegations raised by Citizen TV’s reporters,” said CPJ Sub-Saharan African Representative Muthoki Mumo. “Police should refrain from summoning Citizen TV’s management and journalists, and the government should ensure that members of the press do not face retaliatory action for reporting on security forces.”

In separate statements, the Media Council of Kenya, a self-regulatory body established under law, and the Kenya Editors’ Guild, a professional association, urged officials to address their grievances with Citizen TV through the council’s Media Complaints Commission, a body which mediates disputes over media ethics.

In the April 18 report, aired as “Guns Galore” in English and “Silaha Mtaani” in Kiswahili, a Citizen TV crew led by reporter Purity Mwambia carried out a year-long investigation documenting a network of brokers and police officers who allegedly rented police equipment including guns, uniforms, and handcuffs to criminals. The journalists themselves acquired a pistol, a rifle, uniforms, and handcuffs during the investigation, which they handed over to police this week, according to Citizen TV’s reporting.

In his statement, Kinoti accused Citizen TV of contravening Section 89 of Kenya’s penal code which carries prison sentences of up to 15 years for illegal firearms possession.

Kinoti also said the station did not adequately prove that the weapons, uniforms, and handcuffs featured in the reporting belonged to the police, and accused Citizen TV of failing to give the police the right of reply.

Section 92 of the National Police Service Act makes it a crime punishable by up to five years in prison for officers to sell, pawn, or loses through neglect their firearms, ammunition, uniforms, and other equipment.

Contacted via messaging app today, Kenya government spokesperson Cyrus Oguna referred CPJ to police spokesperson Charles Owino for comment.

CPJ called Owino and Police Inspector General Hilary Mutyambai, but their phones were either turned off or busy, and they did not respond to CPJ’s requests for comment sent via text and messaging app.

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Ghanian online news site temporarily blocked over Kenyan gambling report

Marianna Tzabiras — Mon, 01 Mar 2021 18:43:18 +0000

This statement was originally published on cpj.org on 19 February 2021.

By Jonathan Rozen/CPJ Senior Africa Researcher

On February 4, Emmanuel Dogbevi turned to Twitter with a plea for help. He tagged press freedom groups and colleagues in a series of tweets, lamenting how allegations that he violated U.S. copyright law had prompted his news website to be taken offline.

Dogbevi told CPJ via phone that Ghana Business News, the Ghana-based website he edits, was pulled down for roughly four hours by its web host, U.S.-based DigitalOcean, following two complaints it received in January. The complaints, which CPJ reviewed, alleged Ghana Business News had republished an investigative report about Kenya’s gambling industry without permission.

In fact, Dogbevi did have permission to republish the piece, which first appeared in the Kenya-based Daily Nation, the authors of the report, Lionel Faull and Paul Wafula, told CPJ via phone.

Ghana Business News’ brief removal is the result of what appears to be a multi-pronged attempt to censor the report, which was republished in several outlets, CPJ has found. A similar complaint last month compelled AllAfrica, a news website that operates out of cities in Africa and the United States, to take down the same story, Reed Kramer, the site’s chief executive officer, told CPJ via email. The strategy resembles other efforts documented by CPJ to use U.S. copyright law to quash critical journalism online, from Nigeria to Nicaragua.

The complaints were sent using email addresses purporting to be the two journalists who authored the report and cited the Digital Millennium Copyright Act, a U.S. law also known as the DMCA. A fourth complaint, which CPJ reviewed, was sent last month to Finance Uncovered, a London-based investigative journalism organization where Faull works as a chief reporter, citing the U.K.’s Copyright, Designs and Patents Act of 1988.

“I think it’s an affront to press freedom,” Wafula, business editor and investigative reporter with Daily Nation, told CPJ. “The world has moved on to a very dangerous line of very fishy characters behind keyboards.”

The strategy resembles other efforts documented by CPJ to use U.S. copyright law to quash critical journalism online, from Nigeria to Nicaragua.

CPJ was unable to confirm the true identities of those responsible for the complaints.

Under the DMCA, U.S.-based internet intermediaries like web hosting companies can avoid liability for content published on sites they support by taking down the materials after receiving a complaint, as CPJ has documented. Cara Gagliano, a staff attorney with the Electronic Frontier Foundation digital rights group, told CPJ via email that an intermediary company may find it simplest to disable access to disputed content by taking down the entire website.

Dogbevi told CPJ that DigitalOcean brought his website back online after he started making noise on social media, but insisted he take the Kenyan gambling story down pending resolution of the complaints, which he did on February 4.

Today, Dogbevi restored the article on his site after an email from DigitalOcean, which CPJ reviewed, said he was free to do so since the host had not received responses from the complaining parties and “the counter notice period laid out in the DMCA has lapsed.” According to the law, that period from is 10 to 14 days. (Dogbevi said that period began on February 5 after he responded through a lawyer, following DigitalOcean’s request that he do so, according to another email which CPJ reviewed.)

“What DigitalOcean did tells me that anybody that is unhappy with any story on a news site can issue a complaint and take down any report,” Dogbevi told CPJ. “Anybody that doesn’t like a story about them can easily attack the website by issuing a DMCA takedown notice. They don’t have to be the copyright owner, they just have to fake it.”

He said that he repeatedly informed DigitalOcean that the complaints were fraudulent and forwarded the company corroborating testimony from the real Faull and Wafula, which CPJ reviewed. But he said DigitalOcean insisted the claim was valid.

“I think it’s an affront to press freedom … The world has moved on to a very dangerous line of very fishy characters behind keyboards.”

“[A]s a hosting provider we have limited leeway in how we treat DMCA reports and are required to take action when they’re presented in a specific format as outlined by the DMCA itself – that is what we mean by valid,” DigitalOcean wrote to Dogbevi in a February 2 email, which CPJ reviewed.

In response to CPJ’s questions sent to DigitalOcean, Robert Smith at Highwire Public Relations said in an email that the company cannot comment on specific customer accounts. However, Smith said that “our actions and policies strictly adhere to the guidance” of the DMCA.

The gambling story first went to print in the Daily Nation on May 18, 2020, in cooperation with Finance Uncovered, which republished it later that month. Ghana Business News also republished the story in May, as did AllAfrica, according to Dogbevi and Reed.

It is unclear why the takedown complaints were sent at least nine months after the outlets republished the article.

The two complaints to DigitalOcean impersonating Wafula and Faull included links to sites where they falsely claimed the Kenyan gambling story had originally been published. The email from Wafula’s impersonator linked to dailynationreport.blogspot.com, where a version of the Kenyan gambling report was the only published content. The email from Faull’s impersonator linked to the story on AllAfrica. Kramer told CPJ that AllAfrica removed the article after it received a separate DMCA complaint from the same email address pretending to be Faull.

“We do not have resources to adjudicate complaints or take on legal battles – or battle breach-of-copyright complaints with our service provider,” Kramer told CPJ, adding that it wasn’t the first copyright complaint the website had received.

Faull told CPJ that freethought, Finance Uncovered’s U.K.-based web hosting company, had maintained access to the gambling report after it agreed that the complaint, which alleged the article was originally published by a website called latimeslivenews.blogspot.com, was illegitimate. The site’s header included a copy of the Los Angeles Times logo.

Edward Dore, a director at freethought, told CPJ via email that the host did not take down the gambling report because evidence found online and provided by Finance Uncovered contradicted the complaint. “We don’t want to enable intellectual property theft, but at the same time we also want to protect our customers from spurious allegations,” Dore said.

The complaints regarding the three outlets’ publication of the story were sent from Gmail addresses with the same naming convention: the emails impersonating Faull and Wafula came via legal.lionelfaull@gmail.com and legal.paulwafula@gmail.com; the complaint to Finance Uncovered was sent by legal.markkovach@gmail.com.

Faull told CPJ he worried about the implications of someone pretending to be him, or any other journalist. “An impersonator could phone up someone and try to blackmail them in your name or be unreasonable in requests for comment,” he said. “Your name is a really important aspect of your reputation as a journalist. So this is a form of identity theft.”

Google says that “impersonating another person, company, or entity with the intent to deceive or mislead” is a violation of Gmail’s program policies. CPJ emailed Google questions about the use of its products to impersonate journalists but it did not respond beyond a confirmation of receipt.

Dogbevi told CPJ that he doesn’t really make money from Ghana Business News, but the experience of fighting the complaints was costly in other ways. “The shock, the anger, the pain, the frustration. I couldn’t eat that night, I couldn’t sleep,” he said, remembering the period after his site was taken offline. “It’s annoying when you get punished… with the tacit support of my [web] server.”

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Digital rights in Tanzania, Uganda and Kenya throttled by COVID-19 regulations

Marianna Tzabiras — Tue, 23 Feb 2021 23:16:33 +0000

This statement was originally published on cipesa.org on 19 February 2021.

By Paul Kimumwe

The fight against the coronavirus (Covid-19) pandemic in Kenya, Tanzania, and Uganda has dealt a blow to the promotion and preservation of human rights in the region. The outbreak of Covid-19 could not have come at a worse time, as the countries were preparing for their respective general elections (October 2020 for Tanzania, January 2021 for Uganda, and a potential referendum in 2021 and the August 2022 elections in Kenya).

Even before the confirmation of Covid-19 cases in the region, the three East African countries had instituted Covid-19 mitigation measures, including the adoption of statutory instruments which quickly suspended constitutional guarantees without reasonable justification or meaningful stakeholder consultation. The measures were accompanied with a problematic onslaught on the media, the political opposition and ordinary citizens, which undermined the enjoyment of the rights to freedom of expression, assembly and association, and the right to access a variety of news and information, which was critical to informed decision-making particularly during electoral processes.

On March 18, 2020, Uganda instituted its first set of measures that included the closure of schools and a ban on all political, religious, and social gatherings. A week after the March 22, 2020 confirmation of the first case in the country, the Ministry of Health issued the Public Health (Control of Covid-19) (No. 2) Rules, 2020 that introduced further restrictions including a dusk-to-dawn curfew, the closure of institutions of learning and places of worship, the suspension of public gatherings, a ban on public transport and the closure of the country’s borders and the international airport to passenger traffic.

In Kenya, the government introduced several measures to curb the spread of Covid-19 that included the suspension of public gatherings and other social distancing requirements; limitation of travel into and outside the country; imposition of a dusk-to-dawn curfew under the Public Order Act, 2003; as well as inter-county travel bans between the capital, Nairobi, and three other high-risk counties of Mombasa, Kilifi and Kwale.

A day after the government confirmed its first coronavirus case, Tanzania introduced a series of measures that included the closure of schools and the suspension of sports events on March 17, 2020. Additional directives, including quarantining travelers from countries with confirmed cases of Covid-19 at the travelers’ own cost, were announced by President Pombe Magufuli.

While many of the restrictions such as the closure of international borders, schools and churches and prohibitions on public gatherings have since been relaxed, the long-term impact of these and other restrictions persist.

In this brief, the Collaboration on International ICT Policy for East and Southern Africa (CIPESA) researched Covid-19 related censorship and surveillance practices and related regulatory responses in Kenya, Tanzania and Uganda that affected peoples’ digital rights, including the right to freedom of expression, access to information, and privacy. It shows that the different measures adopted by the three countries, including enactment and enforcement of repressive laws on misinformation/fake news, as well as intimidation, arrests, detentions, and suspension of media operations, have led to an erosion of civil liberties online and offline.

The brief recommends the amendment of all the Covid-19 legislation that restricts freedoms to bring it into conformity with international standards on the right to privacy, data collection and processing as well as freedom of expression and access to information. Further, it urges governments to improve the affordability of the internet by more citizens, ensure the respect of citizens’ rights; and be transparent, and accountable in the conduct of Covid-19 related data collection and surveillance.

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Kenya’s fight against COVID-19 chips away at digital rights

Marianna Tzabiras — Wed, 30 Sep 2020 16:37:55 +0000

This statement was originally published on cipesa.org on 22 September 2020.

Kenya confirmed its first coronavirus (Covid-19) case on March 12, 2020, and as of August 26, 2020, the country had recorded at least 559 deaths, 32,803 confirmed cases, and 19,055 recoveries, with 429,513 persons tested.

Even before the first case was confirmed in Kenya in February 2020, the government had moved to establish the National Emergency Response Committee on Covid-19 to coordinate its preparedness, prevention and response to Covid-19.

The government subsequently introduced several measures to curb the spread of Covid-19 including suspension of public gatherings and other social distancing requirements; limitation on travel outside the country; imposition of a dusk-to-dawn curfew under the Public Order Act, 2003; travel bans in and out of the capital, Nairobi, and three other high-risk counties of Mombasa, Kilifi and Kwale.

The Ministry of Health has been providing regular updates on the pandemic both online and offline through its various platforms. It has provided routine updates including situation reports; Covid-19 protocols and guidelines; various public awareness messages; and daily press updates on the status of the pandemic. The government also required all broadcasters to air the health ministry’s Public Service Announcements (PSA) at no cost. As at May 10, more than 43,000 Public Service Announcements had been aired.

However, concerns remained over the negative impact of these measures on peoples’ enjoyment of their fundamental human rights, including freedom of expression, access to information, privacy and data protection, and freedom of assembly. Meanwhile, a rise in misinformation with respect to Covid-19, has been met with responses from the government that have threatened human rights.

While there have not been reports of government efforts to block or filter content or to shut down websites to fight the spread of Covid-19 misinformation, it has used other means, including legal threats and arrests. In a public statement, the Cabinet Secretary for Health, Mutahi Kagwe, issued a warning, stating that “these rumours must stop … but because I know empty appeals will not work, we will proceed and arrest a number of them to prove our point.” Consequently, the government has abused the Computer Misuse and Cyber Crimes Act, 2018 to intimidate, arrest, and detain persons, including whistleblowers and critics, in order to censor what it has deemed false information in relation to Covid-19.

Following these threats, the government has since arrested four individuals, with two bloggers charged under section 23 of the Act for publishing false information, which carries a penalty of five million shillings or imprisonment not exceeding 10 years, or both. In March 2020, 23-year old Elijah Kitonyo, a student, was arrested after publishing claims on Twitter that the government was deceiving people regarding the Covid-19 situation in the country. According to the authorities, this contravened the Computer Misuse and Cyber Crimes Act.

In the same month, blogger Robert Alai was arrested and charged under section 22(1) of the Computer Misuse and Cyber Crimes Act for publishing alarming and false information in a Twitter post that two people had died of Covid-19 in Mombasa. The arrest came a day after the statement by the Cabinet Secretary for Health warning against misinformation about the virus.

Another blogger, Cyprian Nyakundi, was detained the same week for claiming on Twitter that a senior Kenya Revenue Authority official had travelled out of the country and failed to self-quarantine after returning home. These arrests were unnecessary and disproportionate as there was no evidence of an intention to cause harm, or of harm being caused.

The government has also been accused of clamping down on freedom of association and assembly by restricting movement and mass gatherings during the pandemic period. In April 2020, the Law Society of Kenya challenged the curfew issued under the Legal Notice No. 36 – The Public Order (State Curfew) Order, 2020 under the Public Order Act, Cap. 56 as being unconstitutional. It also complained over the unconstitutionality of the use of unreasonable force by the police in enforcing the curfew.

In its ruling, the High Court found that the use of unreasonable force in enforcing the Order was unconstitutional. Undeterred, in July 2020, police stopped a public demonstration to commemorate the 30-year anniversary of the Saba Saba movement, whose origins date back to 1990 with calls for free elections and multiparty democracy. At least 50 people were arrested as police lobbed teargas at protesters, claiming the protest was illegal since the organisers lacked a permit, yet public gatherings were outlawed during the Covid-19 period.

Another critical aspect is the mass surveillance measures that have been quickly adopted to curb the spread of the virus. Massive data collection continues with collection of telephone numbers, personal information, residential addresses, details of people contacted, body temperatures, as well as location tracking. It is worth noting that all licensed telecom service providers are required to register all SIM cards issued with corresponding subscribers’ details. Also problematic is the development and use of various unproven technologies and mobile applications to support contact tracing. These increase the potential for abuse and present a risk for repurposing the technologies for mass surveillance after the pandemic.

Whereas Kenya has enshrined the right to privacy under Article 31 of the Constitution, and adopted a Data Protection Act in November 2019, the Data Commissioner is yet to be appointed. The contact tracing measures are questionable and potentially violate privacy rights. They lack clear or any legal oversight, and there are no documented safeguards in case of any breaches. Further, there is widespread ignorance regarding the application of the law to the government’s contact tracing programmes. Moreso, it is not manifestly clear how personal data from contact tracing will be collected, stored, and shared.

Civil society organisations have also raised concern regarding the independence of the Judiciary. This follows delayed funding for the Judiciary and recent Covid-19 budget cuts reducing the judiciary’s budget from KES 18.05 billion (USD 171 million) the previous financial year by KES 1.35 billion (USD 12.5 million), leading to suspension of key development programmes; suspension of judicial services during the Covid-19 period from March 2020, with limited court activity since; and the refusal of the President to appoint 41 Judges nominated by the Judicial Service Commission (JSC) in July 2019, despite court orders. Courts remain a critical point of call for those who seek constitutional remedies. Viewed collectively, these developments threaten access to justice and may affect the capacity of the Judiciary to effectively respond to and efficiently deliver justice to those whose rights may be violated during this period.

Meanwhile, the pandemic has led many to work from home, creating increased demand for internet services, and highlighting the ever-rising digital divide. Not all Kenyans have access to fast, and affordable internet, yet access to the internet and digital public services is increasingly being seen as essential for a dignified living.

According to the Communications Authority, internet subscriptions as of March 2020 stood at 39.3 million, while mobile SIM card penetration stood at 116%. While some companies such as Safaricom doubled the bandwidth allocation to their home fibre subscribers, the cost of accessing the internet remains a barrier for most of the population. Working and studying online also means that the public is at a higher risk of cyber incidents. Internet users can be exposed to hacking on online meeting tools, online banking fraud, surveillance, phishing and other email scams. According to the Communications Authority, the Kenya National Computer Incident Response Team detected 34.6 million cyber threats, comprising malware, distributed denial-of-service (DDOS) attacks, web application attacks and system vulnerabilities between January and March 2020, a rise from the 11.2 million attacks reported during a similar period in 2019.

Nonetheless, a number of positive measures have been adopted. In March 2020, the Central Bank of Kenya announced emergency measures to promote the use of mobile money for a three month period. These included the elimination of charges for transactions below KES 1,000 (USD 9.2); increase of daily transaction limits to KES 300,000 (USD 2,763); elimination of charges for transfers between mobile money wallets and bank accounts.

In conclusion, digital technologies have proven to be a key part of the solution to the current Covid-19 crisis. However, the rapid adoption of technologies could lead to decisions without consideration of the complex and long-term human rights impact, especially with regards to transparency and accountability.

According to the UN Secretary General, António Guterres, the post-Covid-19 world is expected to be more digital than before. Therefore, it will be essential for all stakeholders to ensure the respect for privacy, freedom of speech, transparency, participation, accessibility and accountability, including in the digital domain. There will also be a need for continued efforts to build trust and ensure fairness in the use of digital technologies, and bridge the digital divide across the country, to ensure marginalised and excluded groups are included to benefit from digitalisation.

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Cybercrime legislation in Kenya and Nigeria curtails fundamental freedoms

Marianna Tzabiras — Tue, 09 Jun 2020 21:15:16 +0000

This statement was originally published on cipesa.org on 4 June 2020.

The African Internet Rights Alliance (AIRA) has expressed deep concern about the use of cybercrimes legislation to restrict rights and freedoms in Kenya and Nigeria. In turn, the alliance has petitioned the Special Rapporteur for Freedom of Expression and Access to Information in Africa, and the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression to help redress the situation in the two countries.

AIRA has urged the two Special Rapporteurs to publicly call on the governments of Kenya and Nigeria to ensure that their cyber-crimes laws do not restrict fundamental rights and freedoms during the Covid-19 pandemic.

See letter to the African Special Rapporteur and to the United Nations Rapporteur

The alliance raised concerns about Nigeria’s Cybercrimes (Prohibition, Prevention, etc) Act and Kenya’s Computer Misuse and Cybercrimes Act (or CMCA, 2018) – also known as the “fake news” law. For both countries, the alliance noted that during the Covid-19 period freedoms, particularly movement, access to courts, as well as economic and social rights, are being curtailed due to the extraordinary powers held by the governments.

In Kenya, concerns were raised about misinformation and Covid-19 as well as cyber-harassment. An example is the vaguely worded cyber-harassment provision under section 27 of the CMCA, 2018, which has granted the Kenyan government the power to prosecute people for voicing their concerns and opinions. This provision has the potential to lead to convictions for single and one-off, rather than repeated, communication(s).

Meanwhile, AIRA stated that Nigeria had taken a similar stance as Kenya, whose 2015 Cybercrimes law also includes the criminalisation of single incidents of “annoying communication”. According to the alliance, this is a threat to legitimate expression which has already had a chilling effect on civic space and digital rights in Nigeria.

The alliance recognises the need to combat economic crimes committed using digital technologies, as well as the need to curb misinformation during this public health pandemic. However, AIRA also noted that the cybercrimes laws in Kenya and Nigeria had created instruments which enable authorities to arbitrarily monitor and regulate the activities of internet users and to control free expression online, in the absence of adequate safeguards.

About AIRA: The Africa Internet Rights Alliance (AIRA) undertakes collective interventions and executes strategic campaigns that engage the government, private sector, media and civil society to institute and safeguard digital rights. The alliance is made up of nine civil society organisations based in countries across Sub-Saharan Africa, including Amnesty International, ARTICLE 19 Eastern Africa, BudgIT, the Centre for Intellectual Property and Information Technology Law (CIPIT), the Co-Creation Hub (CcHub), the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), the Kenya ICT Action Network (KICTANet), the Legal Resource Centre (LRC) and Paradigm Initiative.

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