By Cyrus Kioko
Increasing number of political leaders association in hate speech has reignited debate over how valid hate speech law is as set by the National Cohesion and Integration commission (NCIC).
In a span of around one and half moths, more than four political leaders have been involved in hate speech allegations where some have their cases in progress in court while others are under investigation by the police under which if found guilty will be arraigned before the court to face prosecution.
The most recent case is where Director of Public Prosecution Keriako Tobiko has directed Inspector General of Police Joseph Boinnet and the National Cohesion and Integration Commission (NCIC) to interrogate Kiambu Governor William Kabogo over alleged hate speech.
The governor is accused of uttering words that amount to hate speech, ethnic contempt and or incitement to violence at a function in Thika Stadium.
However, in the past years, suspects involved in the offence have walked free due to lack of convincing evidence that words they uttered actually comprised hate speech as defined by the law.
A few examples include politicians Wilfred Machage, Fred Kapondi and businesswoman Christine Miller who were acquitted of hate speech charges by Nairobi Chief Magistrate Gilbert Mutembei for lack of sufficient evidence.
Another memorable case is where former Environment minister Chirau Mwakwere also had hate speech charges against him dropped after he apologized for utterances made during Matuga by-election campaigns.
The National Cohesion and Integration Act, 2008 section 13 defines hate speech culprit as “….. Any person who uses threatening, abusive or insulting words or behavior, or displays any written material….”
In section 62 (1) it expounds to state that it includes
“Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race.”
The penalty for the offence is also well stated that those found guilty
“…shall be liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding five years, or both.”
However, difficulties are faced in differentiating between hate speech and freedom of expression. Although the main provision guiding the exercise of the freedom of expression is Articles 33 of Kenyan constitution, the Constitution expressly excludes hate speech within the Article making provision for freedom of expression in part (3) sometimes it becomes hard to differentiate between the two.
“In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others,”
States article 33(3) of Kenyan constitution (2010).
The question remains to the Kenyans on whether NCIC should revisit the act to assist in prosecution of those people who utter incitement and words amounting to hate speech or politicians will remain over the law.
Other political leaders who are in the hate speech circle include Machakos senator Jonstone Muthama, Gatundu South MP Moses Kuria and former Nairobi Mayor George Aladwa.
The law in Kenya is seen to face a blow as many entities including the government has publicly shown defiance of it to extent of disobeying court orders.