A list of 1,700 phone contacts of various Kenyans was compiled by the government after the 2007 post election violence. These are the people who created and forwarded hate messages meant to incite people to tribal violence. Prosecuting them was not possible, then, due to the absence of a legislative framework.
The Kenya Communications (Amendment) Act, 2008 refers to an offensive message as a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. Where a text is offensive, the sender becomes liable to a sentence of up to three months or a fine of up to Shs 50,000.
Cyber and conventional crime share a fundamental concept; evidence is a primary determinant of innocence or guilt. Locard’s exchange principle applies to the real and virtual worlds. This principle is applied to crime scenes and states that when the perpetrator of a crime comes into contact with the scene, he/she brings something into scene and leaves with something from the scene. Every contact leaves a trace. Every e-mail or SMS sent leaves a trace.
The Penal Code makes it criminal for anyone to use threatening, abusive or insulting words or engaging in provocative acts or breach of the peace.