Judges hands tied as hate speech cases flop in court

When the “Pangani Eight” politicians walked to liberty last week, they affirmed the predictable fate of hate-speech cases.

Busia Woman Representative Florence Mutua, Kilifi Woman Representative Aisha Jumwa, former Kitutu Masaba MP Timothy Bosire and Suna East MP Junet Mohamed were set free on grounds that the English and Kiswahili translations provided as part of the evidence were incorrect.

The eight added toll to hate-speech cases stymied by defective charge sheet or withdrawals.

The decision came few weeks after the Judiciary confessed before the Building Bridges Initiative (BBI) that they are unable to convict hate speech suspects because of requirements of the Evidence Act.

“The words were uttered in Kiswahili but were not transcribed well in English and there was confusion as to whether they were inciting,” ruled Chief Magistrate Martha Mutuku.

She pointed out that when a charge sheet is duplex as it was alleged by the defense lawyer John Khaminwa, accused persons cannot understand what the charge is and will not be able to prepare for defense.

The four were part of six politicians who were arrested in 2016 over alleged hate speech.

In February 21, 2017, Gatundu South MP Moses Kuria and Kiambu County Governor Ferdinand Waititu were also acquitted of incitement to violence charges due to lack of evidence.

Senior Principal Magistrate Charity Oluoch ruled that: “I have read the submissions from both parties but I am not satisfied that the utterances could lead to incitement to violence.”

Window of conciliation

In 2017, the High Court dismissed hate speech and ethnic contempt charges against political analyst Mutahi Ngunyi.

Justice Joseph Ongutu ruled that the case against Ngunyi before the magistrate’s court was an abuse of the criminal justice system, adding that the National Cohesion and Integration Commission was in a hurry to prosecute without giving the accused person room to pursue the alternative window of conciliation.

The court agreed with the defence that the case should not have started before the words Ngunyi was accused of posting on his Twitter account on August 19, 2015 describing Luos as poverty-stricken were put into their correct context.

Most of the cases that succeeded had an element of creating disturbance charge, with the court slapping the offenders with a fine of Sh5,000 or 30 days imprisonment.

Others were withdrawn after the accused persons apologised in public for committing the offence.

Former minister and Kenya High Commissioner to Tanzania Chirau Mwakwere was set free after apologising in public over remarks he made while campaigning in Matuga constituency on July 1, 2010.

During submission before the BBI team, the Judicial Service Commission (JSC) said out of 44 cases on hate speech and incitement to violence filed before the Chief Magistrate in Milimani Law Courts as at May 30, 10 of them were withdrawn or discharged by the prosecution.

“It is instructive to note that many hate speech matters have been withdrawn due to failure by witnesses to attend court, or to facilitate mediation. The few that proceed are so poorly prosecuted such that the evidence tendered (especially electronic material) cannot be based on the requirements of the Evidence Act,” reads part of the report.

Just like the Evidence Act that has seen hate speech cases collapse, the prosecution’s hands are tied when dealing with suspects under sections of the Kenya Information and Communication Act that were declared null and void by the High Court in April 2016.

It is this Act that JSC wants Parliament to amend to facilitate prosecution of hate speech cases.

The High Court declared sections of the Act that criminalised the use of licensed telecommunication gadgets for sending offensive messages as unconstitutional, and this has seen cases dismissed by the courts or withdrawn by the prosecution.