Hate speech is generally defined as speech which attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation. In the past, political conflicts in Kenya have been fueled by utterances deemed to be hate speech. Since the inception of pluralism in Kenyan politics, ethnic wars before or after elections have been frequently reported. The 2007/8 conflict was more pronounced than the rest. In most instances the utterances are usually emitted by politicians during their political speeches.
The Constitution of Kenya 2010, which is a post- conflict document aimed to stabilize our transitional democracy. It therefore acknowledged the propensity of the article 33 (i) on freedom of expression being misused. This particular article gives Kenyans freedom of expression, which includes freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. However, to cushion the article from being misused, article 33 (2) limits the freedom of expression by prohibiting utterances that borders on propaganda for war; incitement to violence; hate speech; or advocacy of hatred. Since 2010, when the constitution came into place, a number of politicians and their supporters have arrested and charged in court on account of hate speech.
Unfortunately, there is no prosecution that has ever secured a conviction. For, instance In July 2010, Chirau Mwakwere was charged in court for inciting locals in his constituency against Arabs, NCIC dropped the case by claiming that Mwakwere apologized in public. In 2012, Fred Kapondi the MP of Mt Elgon and Wilfred Machage of Kuria were charged for inciting the Maasai community during their “NO” referendum campaigns, they were acquitted after the prosecution failed to comply with the rules on electronic evidence.
In 2012, Ferdinand Waititu the then MP for Embakasi was charged in court for inciting residents of Embakasi against Maasais, he was acquitted in 2017 for lack of evidence. Nearly all prosecutions on hate speech have failed due to lack of evidence and the limited scope of the definition of hate speech. The limitation of the scope and failure of cases may encourage the careless and divisive talk during political campaigns. The proposed National Cohesion and Integration (amendment) Bill, 2017 among other things comes in to enlarge the definition of hate speech and extend the punitive measures of those convicted of the hate crimes.
For instance, the amendment bill adds new offences such as:
a) the wearing or engaging in the display of clothing, signs, flags, emblems and insignia with the intention to incite or stir up ethnic hatred or having regard to all the circumstances;
b) stirring up ethnic hatred or social strife,
c) disrupting social cohesion through show of serious contempt or discrimination or severe ridicule of; and
d) inciting acts of violence towards a person or group of persons, or towards any property of that person or group of persons. The amendment bill also defines ethnic hatred as, “hatred against an ethnic group”.
Section 13 (4) also includes punitive measure to be taken against media houses which disseminate hate content. The punitive provisions in the amendment Bill are harsher than those in the Act, for instance a person convicted of hate speech shall be liable for a fine of 5 Million Shillings or imprisonment for a term not exceeding five years or both. A media house found culpable of disseminating hate content shall be liable to a fine not exceeding 10 million shillings. Above this a person convicted of hate offences shall be barred from holding a public office for a period of five years from the date of conviction.
It is a truism that no freedom is absolute and therefore citizens are required to be responsible in exercising the freedoms guaranteed in the Constitution. In the same breadth, the laws, rules and regulations made to limit the freedoms must be balanced so as not to curtail the freedoms all together. When it comes to policing citizens on hate speech, the rules must put into context the history of a country in order to issue restrictions that are permissible. Your opinion matters, kindly register on Dokeza, review the bill and give your input.