PRESIDENTIAL SILHOUETTES, ONLINE ACTIVISM, A WARNING FROM TOP SECURITY CHIEFS AND THE FREEDOM OF EXPRESSION.

ABSTRACT

The promulgation of the New Constitution of Kenya on 27th August 2010 ushered Kenya into a positive step in the expansion of the human rights space, more so with its transformative Chapter 4 on the Bill of Rights. Informed by a grim history of repression, detention without trial and enforced disappearances on the basis of not conforming with the ideals of the ruling elite, such breathing room for divergent voices was a necessary welcome. However, 15 years down the line, it is becoming increasingly clear that the current ruling class are more than willing to claw back on such constitutional and human rights gains. This article shall be a commentary on the recent purported ‘warnings’ by the nation’s top security chiefs, as well as an overview of the legal framework on the right to freedom of expression and its limitations.

1.   INTRODUCTION

On 27th March 2025 at an inaugural public lecture themed “Kenya’s Evolving National Security Landscape” hosted by the National Intelligence Research University, the Director General of the NIS[1], Noordin Haji stated that, “…in this age of instant information and digital noise, people demand to know, they want details, they want timelines.”[2] Indeed, the recent abductions of government critics and cartoonists alike have awakened an insatiable fire in the minds and hearts of young Kenyans demanding details as to how their fellow youth were so unceremoniously bundled up into unmarked vehicles and held incommunicado at undisclosed locations.

Earlier during the same event, the Chief of the Defence Forces (CDF), General Charles Kahariri, in his speech intimated that the KDF[3] has a mandate to defend the Republic of Kenya and that any attempt to remove the sitting president must be done in accordance with the Constitution[4]. These remarks by the CDF have set the political and online landscape ablaze with people interpreting this as the army interfering with civilian politics. The immediate former deputy president, Rigathi Gachagua, in his rebuttal to the army chief’s remarks termed the ‘Ruto Must Go’ slogan as a “clarion call in preparation for the [2027] general election”.

It is evident that the powers that be are displeased with the silhouettes of the President that have been circulating on social media platforms, more so on X (formerly Twitter), coupled with the ever-increasing chants of ‘Ruto Must Go’ heard in social gatherings. In this article, I shall be analyzing the circulation of ‘presidential silhouettes’, and the legal framework surrounding the right to freedom of expression and its limits.

2.   ONLINE ACTIVISM AND CIRCULATING PRESIDENTIAL SILHOUETTES

25th June 2024 was arguably the most trying time for Kenya post the promulgation of the 2010 Constitution. Thousands of protesters, angry with their tone-deaf legislators who had just passed the controversial Finance Bill, 2024 into law, stormed Parliament in a bid to ‘salimia’ their representatives. For the first time, the Members of Parliament faced the reality that actions have consequences. While their previous remarks at political gatherings were bullheaded at best and out rightly condescending at worst, this time things had changed. For the first time, they felt that “All sovereign power belongs to the People of Kenya…”[5] Security services scrambled to bundle the parliamentarians into ambulances while others fled using choppers, afraid to meet their electorate. However, this is not what made June 25th to be among Kenya’s darkest hours. The brutality of that day was seen as snipers mounted on the roofs of Parliament practiced their marksmanship on unarmed protesters. Splattered brains on the precincts of Parliament were the last thing any person watching the Gen-Z movement would have expected to see live on TV. A report by the Kenya National Commission on Human Rights (KNCHR) revealed that cumulatively, between 18th of June 2024 to 1st of July 2024, 17 people died in Nairobi alone in relation to the Anti-Finance Bill Protests, 2024.

The government’s overzealous attempt to crackdown on protests inadvertently birthed a new form of protests. Social media platforms such as X replaced the usual streets as the battleground for  digital protests. With the transition to online activism came the famous caricatures (infamous to the government and its hardline supporters) depicting the country’s head of state in all manner of comical ways. This gradually escalated to AI generated images of (allegedly) President William Ruto in a coffin which seemed to rattle the ruling elite. On 3rd January 2025, at the burial of the late Mama Anna Wetangula, mother to National Assembly Speaker, Moses Wetangula, the Senate Speaker, Amason Kingi called for a distinction between democracy and ‘lack of manners’. In his criticism of the online caricatures of state officials, he said, “…you can criticize the policies of this government, but you cannot get personal na ukifanya hivyo umepita mpaka na sheria lazima ikufuate… (and if you do that, then you have crossed the limit, and the law will follow you).”

What of the victims of police brutality? What of the families whose sons are still unaccounted for? When will the law follow the perpetrators of these heinous crimes? I, just like millions of young Kenyans, struggle to find an answer. It is evident that most youth in the country are railing from, inter alia, joblessness, poverty, stress and over taxation. Is it any wonder then that the youth, in their thousands, turn to social media to voice their frustrations? I think not.

3.   LEGAL FRAMEWORK ON THE RIGHT TO FREEDOM OF EXPRESSION AND ITS LIMITATION

3.1.  INTERNATIONAL LAW

Article 2(6) of the Constitution of Kenya, 2010 states that any treaty ratified by Kenya shall form part of the law of Kenya. As such, any treaty ratified by/assented to by Kenya shall have the force of law and shall bind all persons and all state organs.

The Universal Declaration of Human Rights (UDHR) which was adopted by the UN[6]General Assembly on 10th December 1948 and ratified by Kenya on 31st July 1990 is one such international legal instrument. Article 19 of the UDHR provides that, “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.”

In addition to the UDHR, Kenya had previously, on 1st May 1972, assented to the International Covenant on Civil and Political Rights (ICCPR) which had been adopted by the UN General Assembly on 16th December 1966. Article 19(2) of the ICCPR states, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” However, article 19(3) of the ICCPR comes with a caveat. It states that this right is limited in so far as it is necessary: “(a) For the respect of the rights or reputations of others; (b) For the protection of national security or of public order…or of public health or morals[7].”

In Africa, the African Union, in June 1981, adopted the African (Banjul) Charter on Human and Peoples’ Rights (ACHPR) which came into force on 21st October 1986. Kenya ratified the ACHPR on 23rd January 1992. Article 9(2) of the ACHPR provides for the right to express and disseminate information within the law. Additionally, in 2002, the African Commission on Human and Peoples’ Rights adopted the Declaration of the Principles on Freedom of Expression and Access to Information in Africa. Principle 1(1) of the declaration describes this right as crucial and indispensable for the free development of the human person, the nurturing of democracies and for enabling the exercise of other rights. Principle 5 calls for the protection of this right both online and offline. Principle 9(1) provides that this right may only be limited if the limitation: “a. is prescribed by law; b. serves a legitimate aim; and c. is a necessary and proportionate means to achieve the stated aim in a democratic society[8]

The purpose of the right to freedom of expression can best be understood by drawing inference from jurisprudence from the Supreme Court of Zimbabwe in Mark Chavunduka & another v The Minister of Home Affairs[9] where it found that, “…freedom of expression has four broad objectives to serve: (i) it helps an individual to attain self-fulfillment; (ii) it assists in the discovery of truth and in promoting political and social participation; (iii) it strengthens the capacity of an individual to participate in decision making and; (iii) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and change[10]…”

The Supreme Court of Canada, on the importance of the freedom of expression to a democratic state, held, in Edmonton Journal v Alberta (Attorney General)[11], that “Indeed a democratic society cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions.” This view was similar to that of the Indian Supreme Court where it had earlier decided in Manika Ghandhi v Union of India[12]that democracy is based on free debate and open discussion as the only way to correct government actions in a democratic setup.

Why then would the ruling elite feel threatened by caricatures of themselves circulating on social media as a means for Kenyans to express their criticism of the failings of government led initiatives? In my view, leaders ought to be thick skinned and take criticism with positivity, not apprehension. That is the only way for governance to improve in a constitutional democracy, such as Kenya. In summary, per the words of Justice L.P. Chikopa of the High Court of Malawi in R v Mkandawire & Anor[13], “Freedom of speech/expression should not…be restricted to speaking about only those things that delight the powers that be. It must extend to the freedom to speak about even those things that have the capacity/potential to displease…People must be free to hold and impart even unpopular and/or minority opinions.”

3.2.  KENYAN LAW

Article 33(1) of the Constitution of Kenya, 2010 provides that every person has the freedom of expression which includes: “(a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity[14]; and (c) academic freedom and freedom of scientific research.”

W. A. Okwany J. in Cyprian Andama v Director of Public Prosecution & Another; Article 19 East Africa (Interested Party)[15] stated that Kenya is a democratic state with a democratically elected leadership and that it is only through criticism that citizens make known to their leaders that certain actions may not be in the interest of the nation. On the role of the court in protecting the right to freedom of expression, he found that, “Courts of different jurisdictions have held that free speech is the last bastion against irresponsible governments in which politicians tend to wield inordinate power and influence to silence their critics.”

Although the right to freedom of expression is one of fundamental importance, it is not absolute. Article 24(1) of the CoK[16] provides that, “A right or fundamental freedom…shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-(a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of fundamental rights and freedoms by any individual does not prejudice the rights and fundamental freedoms; and (e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.”

Section 22(2) of the Computer Misuse and Cybercrimes Act, 2018 has restricted the freedom of expression in respect of the intentional publication of false, fictitious, or misleading information that: “(a) is likely to-(i) propagate war or, (ii) incite persons to violence; (b) constitutes hate speech; (c) advocates hatred that-(i) constitutes ethnic incitement, vilification of others, or incitement to cause harm; or (ii) is based on any ground of discrimination…; or (d) negatively affects the rights or reputations of others.” According to section 13(1) of the National Cohesion and Integration Act, 2008, a person is deemed to have committed the offence of hate speech when he/she “(a) uses threatening, abusive, or insulting words or behaviour, or displays any written material; (b) publishes or distributes written material; (c) presents or directs the performance of a play; (d) distributes, shows or plays, a recording of visual images; (e) provides, produces or directs a programme, which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior…” with the intent of stirring up ethnic hatred.

This begs the question, do the aforementioned legislations amount to a reasonable restriction or are they attempts to claw back on the constitutional gains on the right to freedom of expression?

The High Court in Robert Alai v Attorney General & another[17] held that it is no longer tenable to use laws that, prima facie, are oppressive to the public for the sole purpose of protecting the dignity of public officers, thereby, violating people’s right to freedom of expression. Per Chacha Mwita J in Robert Alai supra[18], “Any stifling of this right is by any means unconstitutional.”

4.   CONCLUSION

The right to freedom of expression is one of fundamental importance, more so in the realm of online activism. Despite reasonable restrictions being contemplated in the bill of rights, attempts to restrict basic rights, such as the freedom of expression, must be exercised with restraint. The abduction of government critics is both an illegal and unconstitutional means of silencing dissenting voices. A citizen of any constitutional democracy ought to be able to freely criticize his/her government, including through drawing of provocative/satirical cartoons of major political figures. The political class’ attempt to justify the abductions and silencing of divergent views as ‘protecting public morals’ is a lame, unreasonable and preposterous excuse that ought not to be entertained in an open and democratic society based on human dignity, equality and freedom.