Digital Rights Advocates: Interview with Kenyan Lawyer Mercy Mutemi

Welcome to the Digital Rights Advocates blog series, where we hear from lawyers litigating digital rights in sub-Saharan Africa.

Digital rights have become indispensable for people around the world to exercise and enjoy their fundamental rights. Independent media is increasingly moving online – from established newspapers and television channels to bloggers and human rights activists with large social media followings. However, this has been accompanied by an increase in states and other actors seeking to encroach on these rights. In the midst of a global pandemic, it is more important than ever that journalists and bloggers are able to carry out their work unhindered. As part of the Digital Rights Advocates Project, Media Defence works with lawyers litigating digital rights cases in sub-Saharan Africa to promote and protect freedom of expression online.

For this blog, we spoke with Mercy Mutemi, a lawyer specialising in Internet Law and Policy. Mercy has a legal practice in Kenya where she takes up constitutional petitions and legislative interventions to advance digital rights.

What motivates you as a lawyer and what do you find most interesting about your work?

I am awed by how much the Internet has changed all interactions, from mundane transactions to the transformational uses. It is jarring that not all Kenyans experience these benefits owing to ill-advised government policies. This inequality motivates me to fight for progressive legislation to advance universal access and the protection of digital rights.

Why is freedom of expression online important to you?

We are able to realize fundamental rights and freedoms to an extent that was unimaginable in the past thanks to freedom of expression online. Political participation for example has scaled up thanks to online conversations. Access to judicial and social justice has become possible in areas this was unheard of.

What’s it like to be a journalist or blogger in Kenya?

Digital rights are threatened in Kenya. The main threat is in the reluctance by the government to acknowledge digital rights as human rights. Freedom of expression and privacy are fiercely protected in an offline context. Online, these rights are curtailed instead of being promoted. The jurisprudence on digital rights is underdeveloped- leading to numerous unfavourable outcomes when litigating on digital rights.

What’s the environment for digital rights and freedom of expression in Kenya?

Online journalists and bloggers are in a volatile position. They become popular based on their content. Their popularity unfortunately lands them in hot water. Those who speak up against government injustices are the most vulnerable. Their voices have a wider reach and their content often leads to citizen awareness and action.

Could you give us an example of any digital rights/freedom of expression cases you’ve litigated?

Constitutional challenges to:

• Computer Misuse and Cybercrimes Act
• Kenya’s National Integrated Identity Management System – the government’s biometric registration project
• The Mobile Device Management System (DMS) for violating the right to privacy
• The levying of excise duty on Internet access- in this case we ask the courts to declare that the Internet is an enabler of human rights and as such access to it should be promoted, not curtailed

Could you tell us about the Litigation Surgery you attended with Media Defence?

This is the second Media Defence surgery I have attended. These surgeries not only build your capacity on the strategies when litigating on digital rights, they also open your eyes to comparative practice elsewhere. I find them quite inspiring.

Anything else you would like to add?

Advancing digital rights in Kenya will need a multipronged approach. Litigation efforts have to be supplemented by legislative intervention projects.

Follow Mercy on Twitter @MercyMutemi

Read the first installment of the Digital Rights Advocates series here.

If you are a journalist or lawyer in need of support, please click here.

For more information on the Digital Rights Advocates Project, please contact hannah.stoate@mediadefence.org.