What is true about the adherents of a particular religion or religious sect and people who believe that the earth is flat? What is true about them is the fact that they believe that the information that they spread about the belief is true and that any other person believing otherwise is wrong and misinformed. Are flat-earthers and adherents of the teachings of Jehovah Wanyonyi entitled to this belief? Yes they are and Article 32 of the Constitution protects them.
To many people, flat-earthers and adherents of Jehovah Wanyonyi are deluded and that their teachings and writings should be censured. The same can be said of what people refer to as “fake news”. Most people would wish that purveyors of fake news are punished. They should be fined and where they cannot pay the fines, bundled into prisons. This is because they cause a lot of anguish to people that get to believe in what they spread through the internet. This is what section 12 of the Computer and Cybercrimes Act, 2018 seeks to address.
An analysis of section 12 of the Computer and Cybercrimes Act, 2018
Section 12 of the Computer and Cybercrimes Act, 2018 states as follows:
A person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.
On the other hand, the section 2 of the Act defines “data” as follows:
“Data” means any representation of facts, information or concepts in a form suitable for processing in a computer system, including a program suitable to cause a computer system to perform a function;
The definition is problematic in a number of ways as discussed hereinafter. Firstly, there is no yardstick upon which one measures what is false, misleading or fictitious data. Secondly, there is no yardstick upon which one can establish that the person publishing the data knows that he wants the data to be acted upon as authentic. Thirdly, the definition of data is very broad. Does fictitious data in the context of section 12 include data that is published with the intention of concealing something? Is satire publicized on social media or in a blog post amount to false or misleading data? What about a byline? What happens when someone publishes authentic information about a scandal and then uses a false byline to hide his or her identity? Doesn’t that amount to misleading data inasmuch the information published is authentic?
Ascertaining the unconstitutionality of section 12 for its being too broad: The Overbreadth doctrine
It is established that information about one religion may be seen as a lie by another religion. The same case happens with denominations and sub-sects within a religion. For instance, what is considered as the truth by Seventh-day Adventists may be considered as apostasy among adherents of the Roman Catholic faith. What happens when a member of the Seventh-day Adventist church states what he or she beliefs to be true about the Catholic Church but the same is considered as false and misleading by members of the Catholic Church? Do we convict the Seventh-day Adventist Church’s member when he or she knew that the information published is true and is meant to relied upon by a person who wants to join his or her church? If we go ahead and convict such a member, will we not be violating his right to freedom of conscience and opinion under Article 32 of the Constitution?
The Supreme Court of the United States has established when a definition is very broad, there is danger that such broad definition may be used to roll back rights established under the Bill of Rights. The Court has had cases where Acts of state legislatures provided for broad definitions and held that such pieces of legislation were unconstitutional to the extent that a broad definition may limit the enjoyment of certain rights provided for in the American Constitution since a broad definition is amenable to abuse and misuse.
The reason behind this that when a definition is too broad, it becomes vague and ends up covering activities that are protected by the Bill of Rights. The end result is that such an Act ends up prohibiting or making criminal behavior or activity that is protected under the Bill of Rights. This is called the “overbreadth doctrine” under American jurisprudence.
In the American Case of Board of Trustees, State University of New York v. Fox (1989) 492 U.S. 469, a dispute relating to the broad definition of law was argued before the Supreme Court of the United States. In that case, The State University of New York (SUNY) promulgated regulations governing the use of school property, including dormitories. One of these, Resolution 66-156 (1979), stated:
No authorization will be given to private commercial enterprises to operate on State University campuses or  in facilities furnished by the University other than to provide for food, legal beverages, campus bookstore, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events.
In 1982, a representative of the American Future Systems, Inc. (AFS), a company that sold housewares, such as china, crystal, and silverware, to college students, conducted a demonstration of the company’s products in a student’s dormitory room at SUNY’s Cortland campus. Campus police asked her to leave because she was violating Resolution 66-156. When she refused, they arrested her and charged her with trespass, soliciting without a permit, and loitering. It was contended that the Regulations violated her First Amendment rights on free speech since it application extended to non-commercial speech. The Supreme Court held:
[…] Resolution 66-156 must nonetheless be invalidated as overbroad, since it prohibits as well fully protected, noncommercial speech […] On the record before us here, Resolution 66-156 must be deemed to reach some noncommercial speech. A stipulation entered into by the university stated that the resolution reaches any invited speech “where the end result is the intent to make a profit by the invitee.” More specifically, a SUNY deponent authorized to speak on behalf of the university under Federal Rule of Civil Procedure 30(b)(6) testified that the resolution would prohibit for-profit job counseling in the dormitories, id., at 133; and another SUNY official testified that it would prohibit tutoring, legal advice, and medical consultation provided (for a fee) in students’ dormitory rooms, see id., at 162, 181-183. While these examples consist of speech for a profit, they do not consist of speech that proposes a commercial transaction, which is what defines commercial speech. Some of our most valued forms of fully protected speech are uttered for a profit. (Emphasis added)
Again, the Supreme Court of the United States arrived at similar determination in the case R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). In that case, the petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. The cross was erected and burned in the front yard of an African American family that lived across the street from the house where the petitioner was staying. The Petitioner, who was a juvenile at the time, was charged with two counts, one of which a violation of the St. Paul Minnesota’s Bias-Motivated Crime Ordinance which Ordinance provided:
Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
The Petitioner moved to dismiss the count under the Bias-Motivated Crime Ordinance on the ground that it was substantially overbroad and impermissibly content based, and therefore facially invalid under the First Amendment on Speech. The Supreme Court of the United States held as follows:
[…] we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality-are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.
In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some wordsodious racial epithets, for example-would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or genderaspersions upon a person’s mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents. (Emphasis added)
Overbreadth doctrine in the context of the Kenyan constitution
Regard must be had to Article 33 of the Constitution. The Constitution of Kenya at article 33 provides that:
Every 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.
The right to freedom of expression does not extend to—
propaganda for war;
incitement to violence;
hate speech; or (d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or
(ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).
In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
Further, the Constitution of Kenya at Article 34 states as follows:
(1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2).
(2) The State shall not—
exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.
Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that—
are necessary to regulate the airwaves and other forms of signal distribution; and
are independent of control by government, political interests or commercial interests.
Article 32 of the Constitution provides for the right to freedom of conscience. It states that:
- (1) Every person has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.
(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.
(4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.
Therefore, it follows that if section 2 of the Act is interpreted broadly and “data” is defined broadly, then it means that Article 33 on freedom of expression, Article 32 on the right to freedom of conscience and Article 34 on Freedom of media will be violated.
Data entered and published through the digital media may include sermons about a church by clergymen or members of the laity wishing to proselytize other people into their faith. It could mean a fake byline used in a blog post where every other information is authentic so as to hide the identity of the person publishing the information. Therefore, section 12 can be used to criminalise acts that are protected under the Constitution such as the right to opinion.
Article 32 of the Constitution provides for the right to freedom of opinion. What is opinion? The Black’s Law Dictionary defines “opinion” as a person’s thought, belief, or inference. Are all beliefs, thoughts or inferences true? No. It is a fact that the earth is spherical and that it revolves around the sun. These are facts provided by images taken from space among other experiments that can be done on the surface of the earth to prove that the earth is spherical. Despite this amount of evidence, there are people that still believe that the earth is flat. The information that the earth is flat is not only fictitious but also false and misleading. The people that publish information on their belief that the earth is flat do so with the knowledge that such information is be relied upon.
It is for this reason that on May 3, 2018, Steven Novella analyzed the modern belief in a flat Earth, and concluded that, despite what most people think about the subject, the believers in a flat Earth are being sincere in their delusion, and are not “punking” others on this subject. He stated that:
In the end that is the core malfunction of the flat-earthers, and the modern populist rejection of expertise in general. It is a horrifically simplistic view of the world that ignores (partly out of ignorance, and partly out of motivated reasoning) to real complexities of our civilization. It is ultimately lazy, childish, and self-indulgent, resulting in a profound level of ignorance drowning in motivated reasoning.
Do we criminalise the belief in a flat earth? No we cannot. If we do so, we will violate the right to freedom of opinion, belief and conscience that flat-earthers are accorded by Article 32 of the Constitution. Voltaire stated that one may not agree with someone but it is a solemn requirement that one protects that right even when not in agreement with it.
This reasoning can be used with regard to the phenomenon of “fake news”. It is a fact that fake news affected a number of crucial events in the history of the world in the past three years. This can be said of the election of Trump to the White House, Brexit and the rise of right wing movements around the world. The Facebook Privacy scandal is an attestation of the far-reaching ramifications of fake news. Section 12 of the Computer and Cybercrimes Act seeks to rein in fake news and other posts in the blogosphere that may not necessarily true but motivated by individual beliefs and thoughts. If you criminalise such thoughts and beliefs, you are no worse than the Big Brother as portrayed in George Orwell’s novel “1984”. Such an action will turn enforcement bodies in Kenya into what Orwell referred to as “the thought police”.
Therefore, as much as one may think that the provisions of section 12 are going to rein in fake news and other unpleasant articles that exist in the blogosphere, one must remember that such a provision is unconstitutional. It is unconstitutional to the extent that it violates Article 32 of the Constitution. Secondly, it is unconstitutional because it introduces criminal sanctions for matters relating to the freedom of media under Article 34. Article 34(2) is clear that the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalise any person for any opinion or view or the content of any broadcast, publication or dissemination. Therefore, section 12 is patently a violation of Article 34 of the Constitution. Thirdly, Article 33 gives everyone the right to freedom of expression as long as it is not propaganda for war, hatred etc. A person exercising the right to freedom of expression must ensure that in doing so, he or she does not impeach other people’s reputation. In that regard, the tort of defamation exists to ensure that those whose reputation is impeached by a publication are compensated in civil courts and not by bundling them into prisons.
Section 12 of the Computer and Cybercrimes Act is anachronistic, unconstitutional and uncalled for. To sum this up, the Supreme Court of the United States in the case Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993) stated that:
[…] The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.
Therefore, as to whether data presented in a website is valuable, false, misleading or not, it is not the work of the government to assess the falsity or otherwise of such information. It is the writer and the audience that has the powers to establish if such information is true or not. As such, section 12 of the Computer and Cybercrimes Act is unconstitutional.
 https://theness.com/neurologicablog/index.php/what-the-flat-earth-movement-tells-us/ (accessed 17 May 2018)