Law on hate speech

The law on hate speech and freedom of expression

It is an election year. The media makes reports of “hate speech” leaflets which are dropped on the street in some communities. Social media users are quick to point out that the status update of one person amounts to hate speech. Last year, we were treated to some drama when prominent politicians spent three nights in the coolers for making statements that amounted to hate speech. The government has even denounced everyone who trades in hate speech and set up the National Cohesion and Integration Commission (NCIC) in 2008 to curb on the rise of political and ethnic violence. The NCIC is mandated to promote ethnic harmony and to investigate complaints of ethnic or racial discrimination or any issue affecting ethnic and racial relations.

What is hate speech?

The National Cohesion and Integration Commission (NCIC) Act defines hate speech as the use of threatening, abusive or insulting words or behaviour; display of any written material; publication or distribution of written material; presenting or directing the performance of the public performance of a play; distributing, showing or playing, a recording of visual images; or providing, producing or directing a program which is threatening, abusive or insulting or; Involves the use of threatening, abusive, or insulting words or behavior; which intends to stir up ethnic hatred, or having regard to all the circumstances is likely to stir up ethnic hatred.

The NCIC Act explains further that “ethnic hatred “under section 13 means hatred against a group of persons defined by reference to color, race, nationality (including citizenship) or ethnic or national origins.

Hate speech is therefore inflammatory language, meant to propel stereotypes, to spread hate about another group of people. It is fueled by the differences that people have: sex and ethnicity are the major fuels on which the fire of hate speech burns.

It is most spread during political rallies, on vernacular radio stations, through leaflets and mobile phone texting services. The common man, Wanjiku also propels the use of hate speech, especially on social media and in ordinary conversations.

The law

The law on hate speech is envisaged in the Constitution of Kenya (the Constitution) and is related to freedoms of speech, expression, equality and the right not to be discriminated; and more substantive laws are provided for in statutory legislation such as the NCIC Act, the Penal Code and the Criminal Procedure Code.

Article 33(2) (d) of the Constitution states that the right to freedom of expression does not extend to advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or content that is based on any ground of discrimination specified or contemplated in Article 27 (4). The grounds in Article 27(4) include race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.

Section 13 of the National Cohesion and Integration Act, criminalizes hate speech and prohibits the use of threatening, abusive or insulting words or behaviour in any media. Under the NCIC Act, the punishment for hate speech is a fine not exceeding one million shillings or an imprisonment for a term not exceeding three years or both.

The laws on defamation, slander and libel are also relevant to the prosecution of hate speech.

The National Cohesion and Integration Commission, the Kenya Human Rights Commission, the Police, The Director of Public Prosecutions, the Judiciary are all mandated to fight hate speech in their different capacities.

For example, the Communication Authority of Kenya (CAK) formerly the National Communications Commission of Kenya drafted guidelines for election coverage. The NCIC also put the responsibility of filtering out inflammatory text-messages on mobile phone service providers. The use of any language other than Swahili and English – the country’s two official languages – when sending political text messages during the designated campaign period is prohibited.

The police also have audio recorders to monitor hate speech at public gatherings.

Challenges of enforcing the law on hate speech

One of the challenges in the fight against hate speech is that the definition of hate speech is so wide. It is therefore difficult to zero in on a charge of hate speech and make it stick.

Other scholars say that it is difficult to draw the line between what constitutes hate speech and what amounts to an infringement on one’s freedom of expression. But that shouldn’t be difficult in a country like Kenya where the constitution expressly states that one’s freedom of expression does not extend to hate speech or advocacy for hatred.

However the thin line between hate speech and freedom of expression was advanced in 2010 by Chirau Ali Mwakwere who was accused of inciting hatred when during the by-elections campaign for Member of Parliament in Matuga, Coastal Region, he said that Arab settlers had taken land from indigenous coastal communities. Soon after charges of hate speech were levied, he claimed that his right of expression was “grossly violated” by the case.

When three Kikuyu musicians’ songs praising Uhuru Kenyatta (who was a presidential aspirant and ICC Suspect) were charged by the NCIC as “insulting” and “threatening” to the Luo community because of the lyrics which undermined and ridiculed the Luos’ culture of not circumcising the male person and made insinuations about a Luo man who was going to take Kikuyu vast lands; in their defence they said that the prosecution had made a “criminal interpretation of artistic works”. In dismissing their defence, Chesoni the executive Director of the Kenya Human Rights Commission said, “The Bill of Rights, which guarantees these freedoms, is also very clear on their limitations. We can’t enjoy our rights by hurting others, and one can’t use underlying historical injustices like land ownership as a pretext to incite people to violence.”

How then can we put an end to hate speech?

Citizens should be sensitized and educated on human rights and the limitations that are attached to our rights. It should be appreciated that even though freedom of expression is a fundamental human right, it is subject to abuse especially when it is used to advocate for hatred.

There should also be cultural and diversity awareness in schools and other public places of education to impart knowledge and respect for diversity of traditions and cultures.

Journalists should also be educated on their rights and their role in creating and promoting a peaceful society. They must also be made aware of the social implications that come with a free press. Journalists should be able to identify hate speech and find ways of dissipating it before it is presented to the public in the news. Conflict sensitive reporting by the media should be encouraged. This will help to dispel the politics of ‘us’ against ‘them’.

Citizens should be encouraged to report cases of hate speech and related crimes. The medium of reporting such crimes should be convenient and easy.

I conclude by emphasizing that hate speech goes against the spirit of the constitution which guarantees equality of all persons before the law. All people have the right to be protected from hate, bigotry, prejudice and injustice. We must shun the use of hate speech to describe or refer to those who are different. Our diversity is what makes a great nation.

BY SAMALI BITALA

This article appears in our digital law newsletter, The Deuteronomy Vol 3, Issue 4 of March 24th 2017

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