Social media may be hailed as one of the greatest technological feats of the modern world. Within the click of a button, one has access to a huge database of news trends and information. Social media has made it easy for professionals and non-professions to share a wealth of information within seconds. Be it Twitter, Facebook, Linkdin or Instagram, information is readily shared within diverse social media platforms. The London Riots of 2011 and the Arab Spring demonstrated the power of social media.  Through a common cause initiated online, one is able to marshal thousands of people towards common action.

If one follows specific persons or organisations, one gets to access breaking news, analysis, gossip, emerging trends and research information in real time. In fact, even emergency services have reacted within a very short time to tweets or updates on social media. The Kenya Red Cross is an example of this. Service providers have dedicated social media platforms for customer care and general enquiries; even State departments are using social media to bring services closer to Kenyans. I cannot forget to mention Chief Kariuki of Lanet Umoja, Nakuru North District who uses twitter as ‘a tool for community policing, neighborhood watch and crime-reporting activities’.

Whatever the organization or personality, social media provides an apt platform for articulation of issues, service delivery and provision of information. Conversely, social media has been used in the recent past by Kenyans to engage in hate speech, character assassination, propaganda, innuendos, malicious speculation, falsehoods and libel. Sections of Kenyans online have evolved to be Internet mercenaries and bandits engaging in Internet guerilla tactics to drive their points home on social media. These Kenyans will bludgeon their way to use social media as an online warfare tool.

Not long past we have witnessed Kenyans being ‘killed’ on social media or accounts created for smear campaigns targeting certain individuals or organisations. The bravado with which the administrators of some of the sites operate is unnerving. Lack of clear social media laws, policy and regulations may be to blame for the lawlessness in the Internet. Like age-old badlands, some sections of social media seem to be operated by outlaws. It is survival for the fittest in those lands, even if one disengages from social media, the innuendo, propaganda and character assassinations do not cease.

Granted, Article 33 of the Constitution provides for the right to freedom of expression. This includes, freedom to seek, receive or impart information or ideas; freedom of artistic creativity; academic freedom; and freedom of scientific research. However, this freedom does not extent to propaganda for war, incitement to violence, hate speech or advocacy for hatred. The Article concludes by providing that in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

Evidently, in exercise of their fundamental freedom of expression, some section of Kenyans on social media has no respect for the rights and reputation of others. Seemingly, social media is used a playground where jesting and name-calling seem to be the norm. What we do not realise, is that Article 33(3) of the Constitution, mandates us to respect rights and reputation of other persons. While Internet out-laws will not uphold, respect and defend the Constitution, it is time we had concrete laws, policy and regulation of social media use in Kenya.

Section 84D of the Kenya Information and Communication Act makes it a criminal offence to transmit or cause to be published in electronic form, any material which is lascivious or appeals to the prurient interest and its effect is such as to tend to deprave and corrupt persons who are likely having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein. A few bloggers and social media users have been charged with such conduct within the provision of the Information and Communication Act. This Act of Parliament however, does not reflect the evolving nature of social media. Everyday, new technological developments call for a dynamic set of laws and policy.

What many social media users may not realise is that websites do have user agreements that bind users of the sites. For example, Facebook requires users to commit not to bully, intimidate, or harass any user, not to post content that: is hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence. Further, users have an obligation not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law. Blatantly, various users of Facebook have violated the user agreement.

I make proposals for regulation of social media use within the confines of Kenya’s legal system. I note that the freedom of expression may be limited within provisions of Article 24 of the Constitution. A social media law would intervene in the complex set of social media relations. It would bear in mind the impact social media has had in Kenya on social, political, religious, ethnic and economic relations. There is also need for robust privacy laws, intellectual property protections with regard to social media and consumer protection. In addition, such laws would be alive to the fact that different websites are registered and regulated under different legal systems; issues of access to evidence on the websites would also arise. In essence, it would be a reconciliation of the Kenyan legal system and foreign laws.

The challenge is that social media use encompasses a web of diverse rights, freedoms, interests and regulations. It may be argued that the National Cohesion and Integration Act may suffice to deal with hate speech and the Kenya Information and Communication Act to deal with malicious publication of electronic information. My thesis is that social media regulation goes beyond these aging pieces of legislation.

One of the key responsibilities of the incoming Cabinet Secretary for Information, Communication and Technology is to push for robust regulation of social media in Kenya. If this is not done, we will continue to witness Internet banditry involving hate speech, character assassination, propaganda, innuendos, malicious speculation, falsehoods, libel and ‘social media deaths’ of certain Kenya personalities.