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Ban or restriction of TikTok would v*****e the law

Friday, April 19th, 2024 14:05 | By
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In August 2023, a Kenyan by the name Ben Ndolo petitioned the National Assembly to ban TikTok over a number of concerns.

On March 21, 2024, Interior Cabinet Secretary Kithure Kindiki told the Public Petitions Committee of the National Assembly that the government was contemplating banning public servants and people of certain ages from TikTok.

Inappropriate content, including explicit sexual content, promotion of violence, vulgar language, hate speech and offensive behaviour topped the petitioner’s grounds for a total ban on TikTok, one of the social media platforms that have become extremely popular with Kenyans in recent times.

In its 2023 Digital News Report, Reuters Institute stated that Kenya was the global TikTok leader with a significant 54 per cent of Kenyans using the platform for varied ends, among them content-creation and video-sharing; while 29 per cent of Kenyans relied on the platform as their primary source of daily news.

The petition to Parliament came at a time when TikTok is having issues with authorities in the Unites States.

In the US there seems to be some fear among legislators that the Chinese owners of TikTok, ByteDance, could be under the control and manipulation by the Chinese Communist Party and secretly sharing sensitive users data with the Chinese government.

While the company has vehemently denied the allegations, only a naïve person would not situate America’s tiff over TikTok within the global geopolitical context that has backslidden to the cold-war era, this time in a much more complex and multipolar world order that not only has the former USSR (read Russia) in the mix but China as well.

Legitimate as the Kenyan petitioner’s disquiet may be, a total ban or restriction on the use of TikTok would be too extreme, considering that there are less restrictive means of addressing any risks to national security and public morality.

TikTok and other social media platforms that have become popular with Kenyans, including those working in the public service are authentic platforms for the virtual exercise of the rights to freedoms of expression, association, artistic creativity that are all guaranteed under the Bill of Rights in Kenya.

Besides, such a drastic move would be downright unconstitutional.  Provisions of Article 24 of the Constitution states that “a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

The Constitution only contemplates limitations that may be imposed in the exercise of some of these rights with respect to persons serving in the Kenya Defence Forces (KDF), the National Police Service (NPS) and arrested persons.

But even then, limitations can only be imposed by legislation. Other conditions attached to limitation of rights in the Constitution are that a provision in legislation limiting a right or fundamental freedom would not be valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation.

The limitation must also not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation.  It would also require the State or a person seeking to justify a particular limitation to demonstrate to the court, tribunal or other authority that all the requirements on limitation of rights and fundamental rights contemplated in the Constitution have been satisfied.

Social media platforms have become an essential part of Kenya’s vibrant democracy where robust debates and discussions thrive, and citizens are able to contribute to important decisions that affect them.

It’s not far-fetched to imagine that leaders who have found themselves on the receiving end of their constituents, being berated, caricatured and exposed for their non-performance may want to seize the moment to deny Kenyans an opportunity to hold them to account.

— The author is the Executive Director of the Kenya National Civil Society Centre, [email protected]

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