The government directive to have all mobile phone subscribers register their lines is finally beginning to be bite. When Director of Public Prosecutions (DPP) Keriako Tobiko recently directed the police to arrest Rarieda MP Nicholas Gumbo and charge him with sending an offensive SMS to one of his constituents, it became apparent that the directive is being enforced.
For the DPP to make such a move, it means he has the capacity to trace the source of such offensive message and identify the person behind it. But this move has also sent shivers down the spine of many because it smacks of the re-emergence of a police state at a time when Kenyans are supposed to enjoy expanded civil liberties guaranteed by the new constitution.
The directive to register SIM cards has no legal backing.
Speaking at the launch of the SIM card registration exercise in 2010, Information and Communication Minister Samuel Poghisio said the exercise was aimed at safeguarding the public against acts of insecurity, including wide-spread threats posed by terrorism, drug trafficking, money laundering, extortion, fraud, hate messages, and incitement.
To register their SIM cards, subscribers are required to give their full name, identity document number, physical/ postal address, gender, date of birth and alternative contacts. Customers are also required to present their original identity cards or other official personal identifica- tion documentation including passports and military IDs.
But the Acting Director General of the Communications Commission of Kenya (CCK) Mr Francis Wangusi says that the registration exercise has merely been voluntary and is yet to get legal backing.
“It will be recalled that the CCK rolled out a media campaign to educate Kenyans on the importance of registering their SIM cards in June 2010. At the close of the campaign in August 2010, 80 percent of all active SIM cards had been registered. This was despite the fact that there was no supportive legislation in place that obligated subscribers to register their SIM cards. To date 75.2 percent (22,031,708) of all the mobile subscribers in the country have registered their SIM cards,” the CCK boss said.
Safaricom, the country’s largest mobile telephone service provider launched a vigorous subscriber registration exercise countrywide early this year, targeting customers who are yet to register their voice or data SIM cards.
The company took the lead in the registration drive in anticipation of changes to the Kenya Information Act following proposed legislative amendment to the Kenya Information and Communications Act to introduce provisions empowering the Minister for Information and Communications to make regulations for the registration of subscribers to telecommunication services.
Speaking during the subscriber registration drive that kicked off on February 14, 2012, Safaricom CEO Bob Collymore appealed to “voice and data customers who have Prepay modems, iPhones, iPads and tablets to register their lines during this campaign to avoid future disconnection.”
But the question now is; if there is no legislation obliging subscribers to register their SIMs, why has the government made it look like it is an offence for one not to register their SIM cards, and threatened to disconnect unregistered ones?
Mr Wangusi told ET that no SIM cards will be disconnected or deactivated until there is “legislation that provides for man- datory registration.”
But given that subscribers have been compelled to register their SIMs without any law obligating them to do so, what is the legality of the subscriber personal information already held by service pro- viders? Can the courts use this informa- tion when prosecuting people accused of sending offensive messages?
And what constitutes an offensive message in a free society?
Dr Yvonne Ochwaya, a linguistics and language expert who teaches in the communications department of Moi University, says that charging people for sending offensive messages through mobile phone sounds too intrusive on the privacy of free citizens, but it is a necessary step in order to preserve national security especially in ICT-enabled services like mobile phones and internet which can be conduits for committing serious crimes.
“There is need to tame one’s language use. A lot of times, we carefully choose our words when we speak, more so when we intend our words to upset the hearer. Use of offensive language should, therefore, be totally unacceptable. The extent to which language will offend is found in the perception of those to whom it is intended, and the sort of reaction that it elicits,” Ochwaya says.
Thus, if Mr Tobiko charges the Rarieda MP, he will be expected to present the SMS alleged to be offensive as evidence.
But it is, again, interesting to note that as much as many people are being charged for sending offensive messages in Kenya, the law on this matter is very scanty.
Section 29 of the Kenya Information and Communication Act Cap 411A provides that a person, who by means of a licensed telecommunication system, sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.
But there are fears that prosecutors are overstepping their mandate by charging people for offences that are not very well defined in law— more so that they often depend on subscriber information that has no legal backing to trace the source of the alleged offensive messages.
But Kenya is not the first country to punish offensive messaging.
In 2006, the House of Lords of the United Kingdom (now Supreme Court) clarified what makes a message sent by means of a public electronic communica- tions network “grossly offensive” and therefore a crime under the Communications Act (2003) of Scotland.
Leslie Collins, a constituent of North West Leicestershire who held strong views on immigration and asylum seekers, had over the course of two years made a num- ber of angry telephone calls to the offices of his MP, David Taylor, and left racially offensive telephone messages using pejo- rative terms for various races.
Lord Bingham, who gave the leading opinion, branded Mr Collins’ language as “beyond the pale of what is tolerable in our society”.
The Act cited in the case makes it a crime to send (or cause to send) a message or other matter by means of a public electronic communications network that is “grossly offensive or of an indecent, obscene or of a menacing character”.
A “public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making elec- tronic communications services available to members of the public.
In essence, what this means is that the “improper use” provisions in the Act would apply to messages sent over mobile or fixed line communications networks from voicemail messages to texts and emails.
But the Law Lords held that the aim of the law was not to protect people from unsolicited messages but to prevent the use of a service provided and funded by the public for the benefit of the public for the transmission of communications to contravene the basic standards of society.