Freedom of speech and the right to lie

Last Monday (16^th March 2020), a fellow sporting the name Elijah Muthui Kitonyo was arrested by Directorate of Criminal Investigation (DCI) agents, on charges of “publishing false information that may cause panic, contrary to Section 23 of the Computer Misuse and Cyber Crimes Act of 2018.” If found guilty, Mr Muthui faces a fine of up to KES 5 million, or a jail term not exceeding ten years, or both.

The alleged crime was committed through a tweet, in which Elijah charged the government with lying about the first confirmed Covid-19 case in the country. As he wrote, “The Govt has lied to us.. The said lady is called Millicent musau and she came yesterday from Rome boarded in this plane.. Am staff at KQ and I know what happened.. Guys they are lying to us [three sad emojis] #coronaInkenya.” The post was illustrated with a picture of a Kenya Airways plane.

Assuming the government is telling the truth (which requires buckets of benefits of the doubt), it turns out the poor fellow straight up made this stuff up. He lied. And he lied at a time when lying has the potential to cause significant damage. The current state of the world has few precedents in living memory. Getting out of it hinges on many things. But the most important condition is that everyone tells the truth.

This is not some abstract speculation. We have already seen what a complicated relationship with the truth can do relative to the present crisis. Back in late December and early January, when medics and scientists in China started alerting one another about the emergence of a new SARS-like disease, their government came down hard and censored them.

Never mind that the disease was real, and has now forced the world economy to grind to a halt, threatening countless livelihoods. Many have proffered that if China had been honest from the start, we would not have gotten to the present pass. By suppressing the truth, China let the disease fester. The government only opened up when it was already destined to get out of control. Needless to say, it was too little too late.

It seems to me, therefore, that to spread misinformation, especially right now, is the wrong call. In the common interest, it matters little whether one does it to gain notoriety (as Elijah probably did) or for some malign reason (like those folks who, earlier in the week, collected the personal data of naïve folks through WhatsApp in the pretext of doling out free internet bundles from the World Health Organisation).

The main danger lies in the fact that there are people on these streets who will swallow misinformation, hook, line and sinker. Either they are not sophisticated enough to know how to critically evaluate public claims, or they are overwhelmed by the amount of information they are bombarded with, or they are just intellectually lazy. This is why patently false claims often circulate on WhatsApp and Twitter (even when there are no crises).

It is therefore important that, especially in times of crisis, those responsible for the common good (the state and the those to whom it delegates the task) should drive the narrative. Such moments provide valuable opportunities for the cantankerous and the malign alike to lay their claim to fame, and it is important that the voices of reason rises above the din. But there is a fine line between directing the narrative and repression.

The main reason for this is the little problem that we humans have a particular facility for lying. At its root, lying is a consequence of a faulty character, and we are all faulty. It would be naïve, or just plain stupid, to even attempt to deny this. At the end of any day, without much effort and a little honesty, anyone on this dear planet can look back and discover multiple moments in which they lied.

Most of our lies are those we tell our ourselves. Many arise from an erroneous perception of ourselves. To paraphrase a man I admire a lot, the best business would be to buy people for what they are worth and sell them for what they think they are worth. More often, our lies stem from our unwillingness to accept our perception of ourselves and a desire to construct an alternate persona. Whatever the reason though, the truth is that people lie.

However, I think there is a strong reason our capacity to lie. It gives merit to the struggle for sincerity and, consequently, strength of character. Honesty would be worthless if it were impossible to lie. Without the possibility of going terribly off-course, we cannot properly conceptualise freedom (they are essentially separate, but we won’t go into this here). Kids learn to lie by themselves, and the smarter ones learn do so incredibly early. What society teaches them is to tell the truth, rather than to not lie.

The only complication is in the choice of the means society should use for this task and, therefore, what role the state should play in ensuring individuals tell the truth. Personally, I think this should be left to the family, in which people taught to speak the truth, as well as the realm of interpersonal relationships, where one learns that lying harms those he cares for, and that nobody wants to maintain a deep relationship with a patently duplicitous fellow.

The state, on the other hand, should err on the side of non-regulation. It should restrict itself, as far as possible, to its own actions, and the actions of the other called moral persons. What I mean is that the government itself should tell the truth (ours has a particular propensity to lie – just check the Big 4 Agenda website if you doubt me). Similarly, those parts of society that are granted a voice by society, like companies, schools and civil society organisations, should be compelled to speak the truth in so far as it concerns the common good and public order.

In the case of the individual, however, the state cannot compel speech, whether truthful or false, because only the individual can decide what they say. The state should therefore be very careful not to infringe this. The moment it crosses this line, it becomes oppressive. Once we agree with this in principle, we can talk of reasonable exceptions, like the need to speak the truth in a court of law (at the risk of perjury). In all such exceptions, responsibility for the truth must remain with the individual, rather than being ceded to the state.

This is why I disagree with the provisions of Section 23 of the Computer Misuse and Cyber Crimes Act of 2018, which was invoked to arrest Elijah. I have not read the entire act, and so I cannot launch into a point-by-point critique. I will do my best remedy this deficiency soon, but I am not the only one who holds this conviction. The Bloggers Association of Kenya (BAKE) unsuccessfully sued to have some provisions of the bill revised, on the charge that they infringe on freedom of speech, a constitutional right.

I cannot claim that I have thought this through nearly enough, but there is a part of me that recoils at the idea that the state can police what I say, and punish me for it. Once the state decides that it can punish me for lying, the definition of what constitutes a lie moves from my conscience to the state. And I think it is preferable to die than to outsource my conscience to a bunch of bureaucrats, whom I have hired by my vote to take care of the common good.

Freedom of speech, conceptualised politically, should be radical. That means it must include the right to lie. Elijah should not have been arrested. Declaring he had lied was enough.

Feature image: Photo by Dr Josiah Sarpong on Unsplash.

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