Proposed law targets 'hustler vs dynasty' narrative

A proposed new legislation in the Senate seeks to outlaw discrimination and incitement of Kenyans along ethnic, religious or racial lines.

The National Cohesion and Peace Building Bill will rein in politicians with loose tongues ahead of next year's General Election. The proposed law could once again rekindle heated debate on the hustler narrative propagated by allies of Deputy President William Ruto against those branded as dynasties.

The Bill sponsored by Nominated Senator Judy Pareno (ODM) is in its first reading, and has proposed investigatory powers on hate speech, discrimination and incitement for the National Cohesion and Integration Commission (NCIC) and forward the files to the Director of Public Prosecution (DPP) Noordin Haji.

“The commission will be mandated to investigate and make recommendations to the DPP on complaints of hate speech, ethnic or racial contempt,” reads part of the Bill.

With next year's elections fast approaching and the fate of a possible referendum (Building Bridges Initiative (BBI), Bill) still in the Court of Appeal, political alignments have started forming.

And as expected, it will be high octane politics among politicians, some of who usually find themselves on the wrong side of the law, due to their loose tongues during public events.

The proposed changes also seek to restructure NCIC, presently seen as toothless against hate mongers. The commission could get powers to bar politicians cited as hatemongers.

It also proposes the creation of the National Cohesion and Peace Building commission to replace NCIC.

“The object of the Bill is to repeal the National Cohesion and Integration Act. It is to provide for a coordinated, structure for peacebuilding and cohesion in Kenya,” reads the Bill.

It is also proposing to give effect to Articles 10 and 27 of the Constitution on national values and principles of governments as well as equality and freedom from discrimination.

“The Commission shall be a body corporate with perpetual succession and a common seal," the Bill reads.

Currently, NCIC is a statutory body and the commissioners have repeatedly expressed fear that it can be scrapped by just deleting the NCIC Act.

In the proposed changes, the commission will be charged with formulating strategies, plans and programmes to promote national unity.

The proposal also touches on the appointment of the chairperson and commissioners.

“The task of vetting the chairperson and members of the commission is vested on a selection panel that draws its membership from the ministry responsible for matters, the Public Service Commission (PSC), the Law Society of Kenya (LSK) and the National Council for Persons living with disability,” reads the Bill.

The proposed law comes in the backdrop of concerns raised by DPP Haji and former Chief Justice David Maraga that if nothing is done, political violence could erupt during the 2022 electioneering period, saying that the 2007/2008 skirmishes could be seen as child’s play.

Haji signalled out the NCIC Act and the Offences Act as having weaknesses that have led to many acquittals and therefore should be reviewed to curb rising tension caused by politicians’ utterances.

“We are not in the legislative arm; we are here to execute. We executive the law as is. Our hands are tied, it’s the legislature to blame for this," Haji said.

He added: “We are operating in a straight jacket based on the laws given. We cannot be innovative. There is a need to review this legislation to ensure the threshold required is sufficient to hold to account those who violate chapter six.”

Early this year, the National Assembly committee on national security and administration proposed a raft of amendments to give the commission powers to deal with offenders.

This comes at a time the Dr Samuel Kobia-led NCIC is grappling with criticism for failing to secure prosecution despite naming and shaming some politicians allegedly engaging in hate speech.

There are also concerns about Ruto’s hustler nation narrative, which has irked leaders accusing him and his allies of creating a wedge between the rich and the poor.

In February, NCIC listed former Nairobi governor Mike Sonko, MPs Simba Arati (Dagorreti North), Johanna Ngeno (Emurua Dikirr) and Silvanus Osoro (South Mugirango) in its list of shame. It also summoned ten MPs over the chaos that rocked past by-elections.

The commission also shared proposals with MPs to strengthen the NCIC Act. NCIC Commissioner Phillip Okundi said the amendments sought are to the Leadership and Integrity Act to mandate the commission be able to vet aspiring candidates.

Homa Bay Town MP Peter Kaluma said there is a proposal to give NCIC prosecutorial powers over hate speech offenders. In the National Assembly, the committee has tasked Kaluma to chair a sub-committee to go through the proposals, which include changes to the Evidence Act to allow electronic information be admissible in court.

According to Section 96 of the Penal code, those guilty of propagating hate speech are liable to imprisonment of a term not exceeding five years.

However, lack of clarity on how technological evidence can be admitted, has given prosecutors a difficult time in nailing suspects.