Interior Cabinet Secretary Joseph Nkaissery’s gag order on sharing a video online that showed the last moments of the Al Shabaab before they attacked the Kenya Defence Forces (KDF) Baure camp in Lamu County is lawful and constitutional.
The video which was published by ITV shows the moments before the Al Shabaab fighters were preparing to battle KDF forces and half way through the fight, it goes off, indicating their death.
Mugambi Laibuta, an Advocate of the High Court of Kenya argues that the order is lawful as rights guaranteed in the constitution are unlimited. In the gag order, sent to editors, the intention seems to prevent them from airing it in their stations. The idea being that it will reach a larger number, beyond those who may not be able to see it or seen it online. It however also cautions online users to desist from distributing it.
The concern by the Interior Minister is that the video amounts to propaganda to war and incitement to violence. Indeed the Constitution in Article 33 asserts that the freedom of speech does not extend to incitement to violence, hate speech and propaganda to war.
Kenyans went online to share their thoughts on the issue.
I disagree with Nkaissery abt the video of AlShaabab decimated by KDF in Lamu. In fact, that video should be mandatory viewing, ili iwe onyo
— The Makodingo® (@makodingo) June 25, 2015
why did Nkaissery write that letter well knowing the media will not fail to air it however much he selectively quotes the constitution? — Intellect Mogul (@GicheruGicheru) June 25, 2015
But why would Interior CS Nkaissery not want Kenyans to brag with the video where Kenyan forces showed Al Shabaab their MIGHT!? #SwalaNyeti
— Mac Otani (@MacOtani) June 25, 2015
Some questions were also directed as to who really should be investigated or stopped in the first place.
This gunfight video was in KDF custody. Someone sold it to ITV News. Shouldn’t the government be investigating who did that first? — LarryMadowo.co.ke (@LarryMadowo) June 25, 2015
It cannot be expected that a civilian first got the video and sold it to ITV. It is likely to a KDF officer hence the Cabinet Secretary should expend energies towards the forces so as to really show that he does not want Kenyans to disregard the Constitution.
On the material of the video and whether it actually amounts to incitement to violence or propaganda to war, Laibuta asserted that
“I think the Minister fears it might glorify those people as Al Shabaab matyrs.”
The Constitution in Article 24 provides for the limitation of rights and says that the limitation shall only be by law and to the extent that the limitation is justifiable and reasonable. In addition, Article 25 lists the fundamental rights and freedoms that may not be limited. The list does not include freedom of speech.
Gagging mainstream media from airing the video is easy and will happen. The best they will do and some have is to do a story on it without showing the video. However, preventing people from sharing it online is impossible. In fact, the move has increased interest in people and more and more are sharing it. Looking at comments from across social media platforms, the video is making Kenyans proud, something Nkaissery is missing or has not aptly captured the emotions Kenyans are having.
Posting on his Facebook page after the botched attack at the KDF camp in Baure, Lamu County, Security Expert Mwenda Mbijiwe asserted
The pundits and naysayers should now notice we are suddenly becoming a rapid response nation! Al-shabaab will soon be…
Posted by Mbijiwe Mwenda on Sunday, 14 June 2015
As to whether the gag order was necessary for national security reasons, Mwenda said
No of course! Even ISIS brutal videos are on YouTube.
The legality of whether the order is accurate may not be argued. However, as to whether it was a necessary move remains the question since government cannot pull it down, it will continue to go viral and its contents unlikely to come close to propaganda to war or incite violence.