Why Access To Accurate Security Information Is An Imperative To The Protection Of Kenyans

BY CAMILLAH AGAK

Kenya appears to be a target of terrorist attacks, tracing to the Norfolk Hotel attack of 1980 in Nairobi. Over four decades later, the country is still deemed to be predisposed to terrorist attacks. A scanned letter allegedly from the National Police Service REF: CID/SEC/1/2/10/A/VOL. XIV/100 dated 23rd August 2023 hit the vast streets of social media sparking fears of a terrorist attack in Nairobi. Not long after, the official DCI Kenya Account on Twitter – nay, X - platform posted a one-liner dismissing the letter as ‘Fake News.’

Misinformation v. Disinformation:- What constitutes Fake News items?

In the “information age,” social media platforms serve as news channels. The First Draft, Author, Claire Wardle, highlights three main elements of the misinformation ecosystem.? :-????

• The different types of content that are being created and shared. I.e., Security information
• The motivations of those who create this content
• The ways this content is being disseminated.

In 2015, Kenyans on social media rallied valiantly against a comment by a CNN editor that labeled the country as a “Hotbed of Terrorism.” The hashtag #SomeoneTellCNN razed through the airwaves like wildfire. A report by BBC News titled Kenya demands CNN apology over 'hotbed of terror' slur documents that the then interior minister has called on US news channel CNN to apologize for calling East Africa a "hotbed of terror" ahead of then-President Barack Obama's visit to Kenya. The viral post forced the CNN Editor to apologize for the misleading remarks.?

Persons engaged in posting on the platforms must understand the misinformation ecosystem. The motivation for fake news warning of a security threat is unclear. Fact-checking has been a core focus of the regulation of fake news. The DCI platform has 1.5 million followers—responses from users who interacted with the post exhibit disbelief rather than relief. The alleged fake Letter, whose information conveys a potential threat to the public’s security, is not adequately debunked by a one-line tweet, with big-red-all-caps FAKE NEWS plastered across the paper. This is no different from removing a fake news sticker and plastering it on a product whose contents have not been contested.

The whip has been tight on limiting expressions by social media users, and discourse concerning who owns government officials’ Tweets is an emerging concern. While tech companies have come under fire for failure to control content, a more outstanding obligation is on the “content creators” to ensure that information published on the sites is actionable and reliable. Conversely, who owns the government’s official tweets? What is the extent of culpability for potentially misleading information posted on an official government department profile? The extent of fault for fake and deceptive (or otherwise) news must be bare.?

Can misinformation be justified to achieve a security objective?

Chapter 14 of the Kenya Constitution espouses national security as protection against internal and external threats to people, peace, and stability. Since the government is not guilty, more must be done to ensure online information serves an intended purpose.?

It is trite law that limitations must be prescribed by the text of law, in pursuance of one or more specific legitimate purposes and “necessary in a democratic society. The right of access to accurate security information is a basic imperative for individuals to be safe. It is, however, not an absolute right. Kenya’s Access to Information Act 2016 specifies limitations in the context of national security. With the Court’s appreciation that fake news could be misleading, the Act is silent on whether misinformation can be a national security tool to achieve a legitimate purpose. However, the Siracusa Principles on the Limitation and Derogations Provisions in the International Covenant on Civil and Political Rights anticipate instances where derogation from certain rights (i.e., access to information would be limited). It outlines interpretative Principles Relating to Specific Limitation Clauses that would usually used to contextualize limitations.? The Siracusa Principles guide that applicable rules based on national security ought to be interpreted as follows:?

29. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the nation’s existence or its territorial integrity or political independence against force or threat of force.?

30. National security cannot be invoked for imposing limitations to prevent merely local or relatively isolated threats to law and order.

?31. National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exist adequate safeguards and effective remedies against abuse.?

32. The systematic violation of human rights undermines proper national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or perpetrating repressive practices against its population.

The Government has been at the forefront of cracking down on social media users who post misleading information on social media and other online platforms through the Computer Misuse and Cyber Crimes Act, which continues to face legal and implementation hurdles. Bloggers Association of Kenya (BAKE) v Attorney General [2020] eKLR Court virtually affirmed that the Cyber Computer Misuse and Cyber Crimes Act was a? necessary framework for fostering the Government’s legitimate aim in controlling fake news. The Court further elaborates on fake news in that:

There is no doubt that in cyberspace, there has been a genuine issue of misinformation, also referred to or known as publication of "fake news" […]. Such false information spreads so fast on the internet, often irredeemably. […]. Some of the fake information has resulted in fear and panic amongst members of public and may create chaos, uncertainty, and a threat to the national security of the country; […] it is necessary to establish a law to regulate and control the spread of false information which could pose a threat to the national security of the country especially in a country as fragmented as ours. (Para. 45, emphasis added)

The case was filed challenging the Constitutionality of the Computer Misuse and Cyber Crimes Act.

Be that as it may, recent developments in Kenya’s security sector avail an opportunity to interrogate whether technological advancement geared towards better detection, information sharing, and cooperation among government agencies to combat attacks calls for the witnessed rudimentary approach to counterterrorism.?

• Ten months ago, the United States issued a travel advisory to its citizens in Kenya, cautioning them from traveling to “counties around the Kenya-Somali border and some coastal areas saying they are prone to terrorism and kidnapping.”?
• In June 2023, the intelligence community saw a transition at its apex following the appointment of Mr. Noordin Haji as Director General of the National Intelligence Service. Before nomination and subsequent parliamentary approval of appointment, Mr. Haji served as Director of Public Prosecution. In May 2023, it faced public scrutiny after the anti-graft organization Transparency International Kenya revoked an integrity award issued in 2019.?
• In 2023 alone, leading media outlets have published reports on tragic terrorist attacks in Lamu, Mandera, and surrounding counties.
• The Mandera Governor, reportedly speaking at a security meeting, stated that Al Shabaab’s militant presence is more than 60% of Mandera, affecting service delivery in the county. This followed the heightened militant activities in Wajir, Lamu, Garissa, and Mandera counties. Infiltration in mid-2023 has been attributed to?
• On 11th July 2023, the legislative front,? The Anti-Money Laundering and Combating of Terrorism Financing Laws? (Amendment) Bill (National Assembly Bill No.35 of 2023), hereinafter, the Counter-terrorism Bill that outlines a raft of measures geared towards strengthening counterterrorism frameworks in Kenya. A highlight of the amendments includes:?

• Criminalizing any support, including providing forged or falsified travel documents or other documents, facilitation of travel, shelter, clothing, communication devices, and systems to suspected terrorists.
• Establishing a Counter Financing of Terrorism Inter-Ministerial Committee will formulate and supervise the implementation of the National Strategy and Action Plan to counter Financing of Terrorism. It will also implement the UN Security Council Resolutions 1267 (1999), 1373 (2001), 1718 (2006) and 1988 (2011). The resolutions relate to the suppression of terrorism financing and the prevention, suppression, and disruption of the proliferation of and funding of dealings with weapons of mass destruction. Furthermore, the Committee will carry out obligations of the Resolutions relating to banning travel, granting visas, and purchasing arms.?

• In August 2023, another U.S. travel advisory was made, raising concerns about potential terrorist attacks.?
• On 23rd August 2023, the exact date that the “Fake News” Security Brief went viral, the? National Assembly published an Order Paper enumerating lengthy discussions of the Counter-terrorism Bill contents in the afternoon—the same highlights even more proposals to be entrenched in countering terrorism frameworks. Additionally, a separate agenda is set for the 24th of August 2023 for further deliberation on the (Amendment) Bill and other laws. An Order Paper is usually published each sitting day listing the business of the Assembly and business for sittings during Plenary. It is important to note that should the Counter-terrorism Bill 2023 pass into law, the proposed Committee and sub-committees determine their meeting procedure. They will have all the powers necessary to perform their obligations.?

A one-line dismissal of the letter in the wake of heightened security activities neither establishes adequate safeguards nor effective remedies that such public post will not be detrimental.

Posts intended to achieve legitimate security purposes as part of Counter-terrorism approaches

A 2009 UNODC Handbook addressed frequently asked questions on international law aspects of countering terrorism and provides valuable insights into Counter-terrorism and its possible impact on human rights. The guidebook posits that ‘not every disturbance or catastrophe qualifies as a public emergency which threatens the nation.’ Human rights instruments can ostensibly suspend the application of certain rights in clearly defined, temporary, and exceptional circumstances.’?

For Millennia, false flag methods are used to advance and justify various security purposes, interests, or operations. Historically used by pirates, false flags evolved to achieve specified interests in different security contexts. A typical false flag operation is ‘aimed at disguising the actual source of responsibility through deliberate misrepresentation of affiliations or motives.’??

Application of false flag methods in modern society calls for appreciation that society is bound to ask questions about whether a proclaimed security purpose is legitimate, backed by evidence, and for the best public or national security interest of a given State. In 2022, during a Press Briefing by a Senior U.S. government official, journalists demanded evidence of a false flag plot, tasking him to provide any evidence that would help the media fact-check information about the Russia-Ukraine war. Gone are the days when States made unfounded statements that potentially impact public life with little accountability. Recognizing a false flag operation is a complex and multifaceted approach. General indicators that would for false flags may include:

• Inconsistencies in official narratives;?
• Disproportionate media coverage, occasioned by excessive or sensationalized media coverage
• Foreknowledge where evidence shows that some individuals had prior knowledge of the event
• Timing of the event concerning political, social agendas, or legislative actions. The post came at a time when the legislature was pondering a raft of omnibus changes brought through the Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) Bill (National Assembly Bill No.35 of 2023) that would lead to the creation of committee and sub-committees typically of interest to the political elites.
• Timing also goes hand in hand with monitoring follow-up actions as an indicator of false flags whereby authorities take significant policy changes or measures after the event.
• With false flags, reliable and consistent witness testimonies/accounts of an event are significant indicators.

The evolution of security approaches to countering terrorism to less rudimentary tactics has been encouraged to restore dignity and humanity and prevent unnecessary collateral casualties. While false flags are valid and widely used in security operations, the following key steps may be taken in future approaches:

• Gather information from multiple sources and portray an accurate account that serves an intended national security objective.
• Consultations with experts in relevant fields such as security, counter-terrorism, political science, and even legal experts may provide a holistic outlook of a specific approach.
• Use of analytical frameworks to evaluate the credibility and consistency of the information. This will prepare the communication authority to answer any questions, as with the U.S. official’s briefing and ensuing questions following the DCI’s post on Twitter.?
• Corroborate information across multiple sources to identify patterns or inconsistencies; keep detailed records for future reference.

Given Kenya’s history with attacks and events leading up to the viral social media post, the feedback elicited mixed reactions, most of which expressed reservations rather than relief.?

The evolution of counter-terrorism approaches allows for a more human rights-centered approach to security. In Kenya’s case, Article 238(2) (a) & (b) of the Constitution provides that the national security of Kenya shall be promoted and guaranteed in line with the following national security principles:

?a. national security is subject to the authority of this Constitution and Parliament;

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;

As a result, the State can explore legitimate security purposes to protect the peace, sovereignty, and national interests; it is also behooved to be transparent about the truthfulness of public pronouncements as much as possible. A general and official post affects how an individual interacting with public posts goes about their public life.?

There is a legitimate expectation that publications on official & verified social media platforms are geared towards reliable public information. It is not inconceivable that one’s instinct to lower their guard upon seeing such an update would predispose them to a risk security risk. The public’s consumer right to information is necessary to benefit fully from goods and services.?

Article 35 of the Constitution holistically obliges the state to truthfully publicize important information affecting the nation, which is required to exercise our fundamental right to safety. The information must clarify that a viral post is fake

?providing practical and ethical guidance on how to find, verify, and publish content sourced from the social web of the types of counterfeit and fake content

If used wisely, social media sites will be valuable for disseminating vital information affecting the nation. There is a need for the states to invest in accurate reporting and the use of social media platforms to relay information in a manner that not only assures the public of their physical security but also reinforces trust in public communication. Provide some context and include probative value information that the fake news is misleading.??

Camillah Agak K.

Advocate - Kenya | Masters Student, Global Counter-Terrorism Institute

Author.

Ms. Agak is an advocate licensed to practice law in Kenya. She holds a Bachelor’s Degree from Moi University and is part of the 4th Cohort, pursuing a Master’s in International Security at the Global Counter-Terrorism Institute. Ms. Agak is a member of the Law Society of Kenya (LSK) and also serves as a Committee Member in the Research & Publications Committee of the East Africa Law Society (EASL). As a practitioner, she is particularly interested in constitutional law, human rights protection, the rule of law, and enhancing legal, policy & and institutional frameworks in line with SDG 16 to build strong institutions. Career Milestones include participating in the She has over four years of experience and currently works as a Project Assistant at Transparency International Kenya’s Citizen Demand and Oversight Program. Before that, she was a Public Interest Litigation fellow supporting litigation work, research projects, access to information initiatives, and police reform activities at Katiba Institute.