Every time a general election approaches, politicians often capitalise on ethnic affiliations and differences in order to galvanise votes in terms of “us against them”. In the aftermath of the 2007-2008 post-election violence, the Waki Report singled out hate speech as one of the drivers of the crisis. As a result, the National Cohesion and Integration Commission was established to promote unity.
Hate speech can be described as “speech which attacks a person or group on the basis of attributes such as race, tribe, religion, ethnic origin, disability, or gender.” It targets individuals or groups because of who they are. Generally, the right to freedom of expression extends to unpopular ideas and statements, which might very well “shock, offend or disturb”. But international law permits states to prohibit hate speech, which can be propagated through speech, gesture or conduct, writing, or displays that incite violence or prejudicial action against a protected group, or individual; or because it disparages or intimidates a group, or individual. Hate law is divided into two types. One is designed for public order and the other to protect human dignity. What is designed to protect public order requires a higher threshold. This is why politicians who have been charged have been acquitted for lack of evidence. As much as Article 33 guarantees freedom of expression, Article 33 (2) expressly provides that the right does not extend to propaganda for war; incitement to violence; hate speech; or advocacy of hatred. Section 13 of the National Cohesion and Integration Act terms hate speech as any utterance that is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour. It requires the speaker to intend to stir up ethnic hatred, or hatred is likely to be stirred up.
The punishment for hate speech is a fine not exceeding Sh1 million or an imprisonment for a term not exceeding three years or both. The NCIC Act clarifies that “ethnic hatred under Section 13 means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins. The discrimination can be in the guise of euphemisms such as cultural practices, physical traits and ethnic stereotypes. Kenyan politicians have been known to single out a people and call for their attack or harm. The lack of convictions is partly because the Evidence Act has not been amended to deal with electronic or digital evidence such as news clips and cellphone recordings (in which such speech is captured). Recently, the DPP asked Parliament to legalise the use of modern technology in courts, including receiving evidence through video conferencing, high-tech surveillance techniques, and wiretaps. Hate speech and incitement to violence or disobedience of the law under Section 96 of the Penal Code are similar. However, whereas hate speech requires the ingredient of targeting or discriminating against a protected group, incitement to violence does not. Article 34 of the Constitution of Kenya, 2010 embraces the idea of self-regulation of the media. It empowers the Media Council of Kenya to formulate a code of conduct that deals with all issues of content, including problematic speech.
Awareness must be raised on the political, social and cultural rights of individuals and groups, including freedom of speech, and the responsibilities and social implications that come with press freedom. Journalists must be equipped with knowledge and skills to identify hate speech. The police, DPP and the Judiciary must work together to investigate, arrest, charge and secure convictions to drive the point home that this cannot be taken lightly. Civil society must sensitise citizens about protected and problematic speech.
Demas Kiprono is a senior legal officer at Article 19 Eastern Africa.