Amid the increased penetration of digital devices in Kenya and the growing use of the instant messaging app WhatsApp, an increasing number of Kenyans are being prosecuted and convicted for offensive messages — including libel and hate speech — posted in WhatsApp groups.
This trend is being fuelled by the use of the criminal justice system to resolve disputes touching on personal reputation, disputes now amplified by evolving communication technology — a scenario that was almost non-existent 15 years ago.
Lamu Resident Magistrate Flavian Mulama recently observed that freedom of expression must be exercised responsibly and that users of social media and instant messaging platforms should be cautious about the information they share.
“Our Constitution at Article 33 provides for freedom of expression, but while it outlines in detail what that freedom entails, it ends by stating that even as individuals enjoy that right, they must respect the rights and reputation of others. This should remind all of us of the importance of social media accountability,” he said.
Photo credit: Shutterstock
“The same [freedom] is personal, not shared and we should be keen on whatever we post and always ensure factual backing before pressing the send button to all and sundry.”
The most recent to be convicted of a criminal offence arising from a WhatsApp group message is Donald Mwendwa Nzau, also known as Password Mwendwa or Abdulaziz Mwendwa.
Mr Donald Mwendwa Nzau was charged before a Machakos court with publication of false information against Machakos Governor Wavinya Ndeti.
Photo credit: Stephen Muthini I Nation Media Group
A fortnight ago, he was sentenced to pay a fine of Sh25,000 or, in default, serve six months in jail.
He was convicted by Magistrate Mulama for the offence of publication of false information, contrary to Section 23 of the Computer Misuse and Cybercrimes Act, No. 5 of 2018.
The law criminalises the publication of false information through a computer system or other media, if it is intended to or results in panic, violence, or discrediting the reputation of a person. Offenders face a fine of up to Sh5 million, or imprisonment for a term of up to 10 years, or both.
In Mwendwa’s case, the subject message was posted in a WhatsApp group known as Lamu Yetu Sote. The message — which this publication cannot republish — offended Mr Shee Kupi Shee, who reported it to police leading to Mwendwa’s arrest.
The prosecution alleged that the message was false and intended to discredit Mr Shee. The offensive post was made on July 20, 2023 at around 12.44pm.
“The complainant has been clear that his reputation has been tainted by the accused given his status in society and the fact that he is a public servant working as the Director of Disaster Management,” the court stated in its verdict.
Court papers show that the message stemmed from conversations about demonstrations in the country. After the complainant told Mwendwa they were not of the same level and that he should calm down, Mwendwa allegedly posted the offending remarks.
To connect Mwendwa with the offensive post, the prosecution produced extracts of the group chat, subscriber details linking the mobile number to Mwendwa and testimony from witnesses who were members of the WhatsApp group. Two witnesses corroborated the complainant’s evidence, testifying that they read the words in the group and understood them to refer to the complainant, even though he was not directly named.
Another witness identified the chat extracts and confirmed that the message was in response to the complainant’s text. A forensic investigator from the Directorate of Criminal Investigations also testified.
Mwendwa argued that the charge sheet was defective because it failed to fully specify the particulars of the offence, including the name of the victim. He claimed that since the complainant was not directly mentioned, the words could not be linked to him.
Last month, three human rights advocates — Joshua Okayo, student leader at the Kenya School of Law, alongside Davis Thuranira and Brian Kithinji — petitioned Parliament to amend Sections 22 and 23 of the Act.
“Since 2018, many social media users, including bloggers, journalists, whistle-blowers and digital content creators, have been arbitrarily arrested, harassed, detained, or prosecuted for nothing more than a meme, cartoon, or post said to be ‘false’,” their petition stated.
But the Lamu case is one of many. At the Makadara Law Courts in Nairobi, a WhatsApp user was arraigned last year over cyber harassment allegations from a group called Woodley Residents Welfare. The complainant alleged that the accused suggested he had influenced the arrest of a resident. The case is ongoing.
In Kisumu, a 24-year-old man, Abdala Mustafa, was fined Sh50,000 or jailed for three years for possessing terrorism-related videos.
