Hate speech and advocacy for hatred: which is which?

Last week, political discussions about 2022 elections hit a high note among partners within the Jubilee Party, with several party and elected officials chiming in on whether a ‘political debt’ is owed to Deputy President William Ruto by Central Kenya. This debate was sparked by former Jubilee Chairperson David Murathe who personally believes that the DP should not run in 2022.

As the debate raged, some Kenyans, including elected officials and social media users began appealing to negative tribal affinities. One twitter user, who has since been arrested, threatened Kikuyus with widespread violence, should his preferred candidate be “betrayed”. Moreover, several politicians from both camps have made similarly problematic statements, threats and counter threats.

If last week’s rhetoric is anything to go by, perhaps as Kenyans, we have refused to learn from our troubled past. We are yet to come to terms with our constitution and what it has to say about national values and principles, equality before the law, non-discrimination and free speech and speech that cannot be tolerated. Sadly, politics in Kenya is to a great extent based on tribe - which has caused division and animosity.

Article 33 of the Constitution and Article 19 of the International Covenant on Civil and Political Rights, which Kenya is party to, provide that every person has freedom of expression, including the freedom to seek, receive or impart information or ideas through any media, regardless of frontiers. It must be understood that the right to freedom of expression, as a matter of necessity, extends to expression which shocks, offends and disturbs. Be that as it may, this right is not absolute.

  Ethnic incitement

In fact, Article 33(2) cautions that freedom of expression does not extend to propaganda for war; incitement to violence; hate speech; or, advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm. This caution is informed by past mischief, where free speech was used for dehumanising, diminishing, demonising, destroying and eliminating people considered as the other based on differences in race, tribe, ethnicity et cetera. Examples include Nazi Germany during the holocaust; the Rwanda genocide; and, the 2007 post elections violence in Kenya.

International law makes clear that advocacy of hatred is more than just the expression of ideas or opinions that are hateful towards members of a group, often minorities within one context or another. It requires a clear showing of intent to incite others to discriminate, be hostile and an encouragement of intense and irrational emotions of contempt, enmity and detestation toward, or commit violence against, the group in question.

States are required to prohibit advocacy of hatred as defined under international law. However, such laws must be very clear and concise; pursue a legitimate aim; and be necessary in an open and democratic society. Which raises the questions: Do our laws meet international and the constitutional threshold for limitation of freedom of expression? Why have there been very few successful prosecutions for hate speech in Kenya?

An offence

Section 13 of the National Cohesion and Integration Act criminalises hate speech. It provides that a person who uses threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up. Despite this law, rogue politicians and others have often ended up scot-free for utterances that clearly seek to advance hate among Kenyans.

In my opinion, the challenge lies in the law that seems more concerned about curbing threats, abuse and insults based on identity that stirs ethnic hate, than the prohibited result of hostility, intimidation or violence. I posit that the law should lay emphasis on the likeliness and conscious intention for the words or expression to actually cause hostility, intimidation or violence. As such, the legal terminology should have ideally been centred on “advocacy of hatred that constitutes discrimination, hostility and violence.”

Another challenge includes the complicated nature of adducing electronic evidence in criminal proceedings, such as video clips depicting the speech in question. For instance, the law requires the person who took the original, raw and unedited video to swear an affidavit and present it as evidence before the courts.

To ensure that measures to prevent incitement to tribal, ethnic or racial hatred are effective, the NCIC and the government should avoid exclusive or undue reliance on punitive measures and adopt holistic approaches to combating prejudices and discrimination.

Most importantly, Kenya in all its shapes and colours should be fairly represented in all facets and levels of Kenyan life, especially the public service. Tribal and racial attitudes and animosity are often traceable to marginalisation in one way or another. Next time NCIC is reporting that the public service is dominated by tribe X and Y, it should give us workable recommendations on how and when the situation should be placated.

Mr Kiprono is a Human Rights [email protected]