The law should give clear description of what constitutes hate speech

Interior CS Fred Matiang’i has said the government has put in place measures to ensure Kenyans will have peaceful elections.

He added that a multi-agency team had been formed to, among other things, monitor vernacular radio stations and map the so-called “hotspots” to make special provisions regarding deployment of personnel and resources to adequately respond to the threat of hate speech and violence.

Since the 2007 General Election, Kenya has instituted a raft of policy reforms to foster national unity and fight speech that threatens peace. This includes the passage of the National Cohesion and Integration Act (NCIC) that criminalises hate speech and creates a commission that can investigate problematic speech.

Still, many politicians have been identified for causing ethnic disharmony and hate speech, especially during heated political periods such as elections. Despite the law and a commission meant to investigate such speech, prosecutions, and especially convictions, have been far in-between.

Section 13 of the law outlaws discrimination and hate speech on ethnic grounds. However, many observers find the law problematic because it vaguely and broadly defines “hate speech”, rendering the law somewhat moribund when it comes to preferring charges against the persons accused of hate speech. Critics maintain that the words “threatening”, “abusive” and “insulting” are overly vague and broad and even subjective.

For instance, what one person would consider abusive or insulting would be perfectly normal or proper by another. Another challenge has been the lack of understanding of hate speech among law enforcement officers who are often overzealous in protecting the establishment rather than seeking justice. They seem to conflate offensive words against politicians with hate speech towards protected groups, and thus illegally end up arresting and sometimes prosecuting persons for partisan political purposes.

Another emerging area of concern is the process and procedure in which the government determines and classifies so-called “hotspot zones” and what such determination means for the people residing in those parts. For example, if parts of Rift Valley, Nyanza, Nairobi or Mombasa are classified as “hotspots”, will the State response affect the residents’ ability to freely and fairly participate in the political process? Will they be criminalised?

To give it teeth, the NCIC Act needs to be amended to promote freedom of expression and free, fair and democratic political contestation. It should clearly define hate speech, as required by the Constitution. Any legal mechanism seeking to tackle hate speech must take into account the social and political context; status of the speaker; intent to incite the audience against an identifiable target group; and content and form of the speech.

Moreover, the reach and extent of its dissemination and likelihood of harm, including imminence of violence should be considered. Until we amend the NCIC Act to respond to this, we will continue having a toothless law that does not respond to our needs.