Is the government right to spy on your SMS?

Amid the hullabaloo of Osama’s killing and the crippling fuel shortage that hit Nairobi, a shocking announcement sneaked its way into the paper yesterday without anyone making too much a fuss about it. 

It was reported that the National Cohesion and Integration Commission has been monitoring text messages and internet-based communication for any clues of hate speech and incitement. Surprisingly though this news does not appear on the front pages of any of the main media houses websites this morning.

As if to allay the obvious concerns on privacy, Commissioner Halakhe Waqo “assured phone users that adequate steps have been taken to safeguard individual privacy unless it breaches national security and peaceful co-existence “

Seems harmless enough so far. But then Commissioner Waqo went on to say:

“We do recognise that privacy is very important for an individual but public security and safety is much more important. We want to pin down that breach in public safety and security,”

Now this is where things get scary, is the NCIC saying that in the fight against hate speech, privacy comes second to “public security and safety”?

Before making an emotional response to that question, it is better to consider all issues that this question brings up:

1. What is the mandate and authority of the NCIC in tackling hate speech?
2. What constitutes hate speech?
3.  What are the constitutional/legal safeguards of privacy vis-à-vis national security?

Mandate and Authority of the NCIC

The National Cohesion and Integration Commission is a creature of the National Cohesion and Integration Act 12 of 2008. The act is defined as an act of Parliament to encourage national cohesion and integration by outlawing discrimination on ethnic grounds; to provide for the establishment, powers and functions of the National Cohesion and Integration Commission, and for connected purposes.

Under Section 25(2)(i) of the Act, one the Commission’s functions is to investigate on its own accord or on request from any institution, office, or person any issue affecting ethnic and racial relations. This seems to allow the Commission to investigate hate speech being propagated through SMS or social media.

It is a matter of public knowledge that SMS were used to devastating effect to propagate hate speech that contributed to a lot of the post election violence in 2008. The rise of social media also as a tool of mass communication seems to advise the Commission’s focus on this.

So far it seems Waqo has the backing of the law, but what exactly is the Commission monitoring? 

What does Hate Speech constitute.

To understand the origins of hate speech legislation an excellent read is KNCHR’s Lawrence Mute’s 2008 piece

In this post, I will limit myself to what the act says on Hate Speech

Section 13 of the Act defines hate speech as.

13. (1) A person who-

(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 the public performance of a play;

(d) distributes, shows or plays, a recording of visual images; or

(e) provides, produces or directs a programme;

which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.

So for the SMS or Social Media posts to constitute hate speech they must be:

1. threatening, abusive or insulting
2. intend to stir up ethnic hatred or be likely to stir up ethnic hatred
3. be published or distributed.

The first two conditions are subjective and in the absence of any judicial direction on them (or is there) it is hard to say exactly what constitutes hate speech. However from those who have been charged so far (Wilfred Machage et al) we can say that any talk of evicting a community from an area falls in this category.  On the other hand comments from Raila and Uhuru which some considered insulting to a community did not seem to fall within NCIC’s interpretation of hate speech (or does it).

As to the third condition we can ask if SMS & Social Media posts can be considered published or distributed.  From the common law definition of publication (under the Tort of Defamation) we can conclude that to be published includes by:

(a) spoken words or audible sound or

(b) words intended to be read by sight or touch or

(c) signs, signals, gestures or visible representations

Of course this alone is not enough to constitute published if for example the author keeps it to himself. The other qualifier for something to be published is distribution. The offensive publication must be available for consumption by a person other than the author.  However there are requirements as to who constitutes the audience of the published material?

Social Media posts are usually public. The fact that these posts can be accessed by anyone with an internet connection seems to meet the qualifier of audience mentioned above. We can therefore assume that they squarely fall within the definition of published and jurisdiction of the NCIC to investigate.

How about SMS? This is a much trickier one to figure out, because SMS are generally not public in nature. Perhaps we look at this from a different angle, from the perspective of the recipient of the SMS (assuming that NCIC is also tracking who is sending what to whom)

As to who qualifies as a target of hate speech: according to  Mute’s article, hate speech is not that which offends the feelings of the community  targeted but actually changes the perception of other communities against that targeted community. E.g. if you are a Kikuyu and you tell a Luo that he is a Kihii (derogatory term for an uncircumcised boy) that does not constitute hate speech; but if you tell another Kikuyu that Luo’s are Kihiis, then that is hate speech.

So in brief if NCIC knows that you are from community A, and sending an SMS which is threatening, insulting or abusive likely to stir up ethnic hatred among your community against community B then that is hate speech and NCIC has the power to investigate you.

So far so good, but where does privacy come into all this?

Going back to Waqo’s quote he recognizes that privacy is a concern but says it plays second fiddle to national security. But what does the constitution say?

Under the Bill of Rights, Article 31(c) of the Constitution everyone has the right of privacy which includes the right not to have the privacy of their communications infringed. Infringement of communication includes invasion of privacy through any means of disseminating private information.  So if the means being used to send the information is intended for private communication (e.g. email, twitter direct messages, facebook messaging, SMS) then NCIC would be breaching the right of privacy by invading this.

But of the Commissioner’s assertion that National Security trumps privacy?

Article 238 of the same constitution is very specific on the principles of national security.

238 1(b) national security shall be pursued in compliance with the law and with the utmost respect for the rule of law, democracy, human rights and fundamental freedoms.

 It further says under 238 (1)(a) that national security is subject to the authority of this Constitution and Parliament;

I think from this reading it is fundamentally clear that the hierarchy is Privacy first (human rights and fundamental freedoms) and national security second, contrary to what the good commissioner is saying.

Worryingly the commissioner seems to echo the thinking of the shadowy figures who had illegally inserted the words “national security” to the constitution as it was being prepared for the referendum. The illegal insertion added made Article 24(1)(d) read as:

The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice national security, the rights and fundamental freedoms of others

Luckily Kenyans were vigilant and the ensured that the constitution passed removed those odious two words.

In light of these constitutional provisions, then is NCIC flouting the bill of rights by monitoring private SMS messages?

Putting it all together

It is disappointing that the commissioner’s statement has not been met with vigorous opposition from those we charge to protect our rights, and those we rely on to inform us.  The rule of oppression and suppression of liberties begin with small tentative chipping away at these liberties. When no one complains, even in the face of obvious flouting of the constitution, then they take away a bit more. Soon we realize that our constitution is only a piece of paper when no one is left to defend it.

I will leave you with two quotes to think about.

The first is from the National Cohesision and Integration Act which makes it mandatory for the NCIC to publish any messages which they have investigated and found to constitute hate speech.

Article 26(2) In the discharge of its functions under this Act, the Commission—

…

(b) shall publish the names of persons or institutions whose words or conduct may undermine or have undermined or contributed towards undermining good ethnic relations, or who are involved in ethnic discrimination or the propagation of ethnic hate;

The second is from George Orwell’s 1984. Those who’ve read the book know that Big Brother is not some DSTV show but rather the embodiment of invasion of any semblance of privacy an individual can have to the point of invading the private thoughts of an individual.

"It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself--anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face...; was itself a punishable offense. There was even a word for it in Newspeak: facecrime..."