Why hate speech law craves a fresh breath

The summoning by police of more than a dozen politicians to record statements over claims of hate speech has reignited debate over difficulties in sustaining such charges.

Government officials say to date, no single case has resulted in a conviction, which highlights the difficulties faced by authorities in prosecuting suspects. A good number of the cases involve politicians accused of inciting the public and polarising the country even more.

Also, such cases could be used to settle political scores as is being claimed by CORD after politicians affiliated to it were summoned over alleged inciting remarks. Legal experts now say Kenya needs a fresh look at the laws on hate speech and make a raft of changes if police are to sustain charges and attain convictions.

An official at the National Cohesion and Integration Commission (NCIC) Mwengi Kyalo says the commission has to date ten hate speech cases in court. In two cases, the accused have been acquitted. Two more cases are pending in a Nairobi court, while three others are ongoing in Busia County. In some cases, suspects have walked free due to lack of convincing evidence that words uttered actually comprised hate speech as defined by the law.

No evidence

Last week, musician John Ng’ang’a, alias DeMathew, was acquitted of the charges by Senior Principal magistrate Ellena Nderitu who said there was no evidence the words in his song Mwaka wa Hiti (The Year of the Hyena) constituted hate speech against CORD leader Raila Odinga. “After perusing through the file and listening to submissions by the prosecution and the defence this court found no evidence to link the accused’s song to hate speech charges leveled against him as he never mentioned any tribe in his song,” ruled Nderitu.
In 2011, politicians Wilfred Machage, Fred Kapondi and businesswoman Christine Miller were acquitted of hate speech charges by Nairobi Chief Magistrate Gilbert Mutembei for lack of sufficient evidence. In 2012 former Environment minister Chirau Mwakwere also had hate speech charges against him dropped after he apologised for utterances made during Matuga by-election campaigns.

In the same year, three musicians Kamande wa Kioi, Muigai Wa Njoroge, and John DeMathew, also faced hate speech charges. “The law on hate speech was hurriedly crafted to address the problems we had in the aftermath of the 2007/8 post-election violence without being sufficiently narrowed in its definition to enable it uphold a conviction,” says Haki Focus Executive director Harun Ndubi.
The NCIC Act defines hate speech as that which advocates or encourages violent acts against a specific group and creates a climate of hate or prejudice, which may in turn foster commission of hate crimes.

“When do you determine that words uttered brought hatred against an individual or community? Most of these offences these individuals are charged with are largely based on opinions they hold against government rather than what the law defines as hate speech,” he says.

Matters are further complicated by provisions in the Constitution, on Freedom of Association and speech which however does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred.

“Incitement to violence is different from hate speech and can be handled under the penal code. But we sometimes confuse the two. ‘Hate speech’ is by itself so fluid in definition that it makes it difficult to sustain a case,” says Ndubi.
The lawyer cites a lack of political will to successfully prosecute hate speech cases and points to the current composition of the NCIC as an argument one may front to question validity of charges preferred against them. “ NCIC mandate expired in late 2013 and the commissioners are yet to be replaced. One may argue there is no commission because NCIC as a body executes instructions made by the Commissioners. In the event that one wants to sue NCIC, for instance, it is the commissioners who will be sued and not the secretariat,” says Ndubi.
But Director of Public Prosecution Keriako Tobiko argues the Commission, as an entity, still exists and its operational functions are intact.

He is optimistic that an integrated model of investigations that ropes in the police, NCIC, and Communications Authority of Kenya will strengthen investigations on hate speech: “The politicians have only been summoned to record statements after which a decision to charge them will be made after hearing their side of the story,” he says.