Freedom of expression and harmful speech: The Kenyan situation
27 Sep 20120 comments
The Constitution of Kenya - promulgated in August 2010 - includes, in Chapter 4, an extensive Bill of Rights. Article 33 of the Constitution protects each individual’s freedom of expression, which extends to freedom to seek, receive or impart information or ideas, freedom of artistic creativity, academic freedom as well as freedom of scientific research.
However, paragraph (2) of Article 33 limits freedom of expression by stating that it 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. In addition, such freedom of expression must not violate any ground of discrimination specified or contemplated under Article 27 (4) and must be exercised with respect to the rights and reputation of others.
The threat posed by such words or speech was first brought to light through a report published by the Kenya National Commission on Human Rights following the ethnically-spiced propaganda that masked the 2005 Constitutional referendum campaign. The key role that the media played in enhancing such propaganda led, among other reasons, to the enactment of the Media Act in 2007.
The Widespread Violence in Kenya in 2008
In 2007 Kenya held its general elections, including the presidential elections. When the results of the presidential elections were released in December 2007, disputes arose that resulted in wide ranging civil strife. The conflict began between the supporters of the main opposing candidates drawn from two political parties (ODM-Orange Democratic Party and PNU- Party of National Unity) but later spread. The extent of the devastation that ensued was catastrophic, with approximately 1,300 people killed and over 600,000 displaced, in addition to massive destruction of property.
Peace-seeking Kenyans were joined by the international community in calling for the restoration of peace and this led to a visit by President John Kufuor, the then Chair of the African Union, to Kenya from 8 to 10 January 2008.
These peace-seeking initiatives led to the creation of The Panel of Eminent African Persons composed of former UN Secretary-General, Mr. Kofi Annan (Chair), former President of Tanzania, Mr. Benjamin Mkapa and former South African First Lady, Mrs. Graca Machel, to assist Kenyans in finding a peaceful solution to the crisis.
Under the stewardship of this Panel, President Kibaki’s PNU and Mr. Odinga’s ODM started negotiations through the Kenya National Dialogue and Reconciliation Committee (the KNDR). A four-point Agenda for the KNDR was agreed upon at the outset of the negotiations, as follows: -
(i) Immediate action to stop the violence and restore fundamental rights and liberties;
(ii) Immediate measures to address the humanitarian crisis, promote reconciliation, healing and restoration of calm;
(iii) Immediate action to overcome the political crisis;
(iv) Long-term issues and solutions (such as constitutional, institutional and legal reforms; and reform; poverty and inequity; unemployment, particularly among the youth; consolidating national cohesion and unity; and transparency, accountability and impunity).
An Act of Parliament - the National Cohesion and Integration Act (NCI) - was passed during this period to solidify national unity.
The National Cohesion and Integration Act, 2008
This is an Act of Parliament intended to encourage national cohesion and integration by outlawing discrimination on ethnic grounds. The Act also establishes the National Cohesion and Integration Commission. The Commission has broad objects and functions, some of which are to:
a. promote the elimination of all forms of discrimination on the basis of ethnicity;
b. discourage persons, institutions, political parties and associations from advocating or promoting discrimination or discriminatory practices on grounds of ethnicity or race;
c. promote tolerance, understanding and acceptance of diversity in all aspects of national life and encourage full participation by all ethnic communities in the social, economic, cultural and political life of other communities;
d. plan, supervise, coordinate and promote educational and training programmes to create public awareness, support and advancement of peace and harmony among ethnic communities and racial groups;
e. promote respect for religious, cultural, linguistic, and other forms of diversity in a plural society;
f. promote equal access and enjoyment by persons of all ethnic communities and racial groups to public or other services and facilities provided by the government;
g. investigate complaints of ethnic or racial discrimination or any issue affecting ethnic and racial relations and make recommendations to relevant authorities on remedial measures, among others.
Hate speech is defined in sections 13 and 62 of the NCI Act.
This section of the National Cohesion and Integration Act 2008 states that a person who;
“(a) uses threatening, abusive or insulting words or behaviour, or displays any written material.
(b) Publishes or distributes written material;
(c) presents or directs the public performance of a play;
(d) distributes, shows or plays, a recording of visual images; or
(e) provides, produces or directs a programme;
Which is threatening, abusive or insulting or involves the use of 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.
(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or both.
(3) In this section, ‘ethnic hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.”
Section 62 (1) of the NCI Act provides that;
“ (1) 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, commits an offence and 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.”
(2) A newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.
The Media Act, 2007
This is an Act of Parliament to provide for the establishment of the Media Council of Kenya, which is a body to guide the conduct and discipline of journalists and the media, for the self-regulation of the media and connected purposes.
According to the Media Act No. 3 of 2007, Second Schedule to the Act, titled “Code of Conduct for the Practice of Journalism in Kenya”, Regulation 25 provides that;
“quoting persons making derogatory remarks based on ethnicity, race, creed, colour and sex shall be avoided. Racist or negative ethnic terms should be avoided. Careful account should be taken of the possible effect upon the ethnic or racial group concerned, and on the population as a whole, and of the changes in public attitudes as to what is and what is not acceptable when using such terms”.
The International Sphere
International law highlights the importance of respecting the rights of others while exercising the freedom of expression. Freedom of expression is not absolute and can be restricted for the public good, public security, including the need to protect everyone from any kind of harm. Thus, the qualification of the right to freedom of expression through outlawed speech termed ‘hate speech’ as is found in Kenyan law is in line with international norms.
1. The International Convention on the Elimination of Racial Discrimination
Kenya ratified the International Convention on the Elimination of Racial Discrimination (CERD) on 13th September 2001. The Convention came into force on 13th October 2001. Article 4 states that:
“All dissemination of ideas on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and the provision of any assistance to racist activities, including the financing thereof is an offence punishable by law”.
This convention also declares illegal and prohibits propaganda activities which promote and incite racial discrimination. It further prohibits national and local public authorities and institutions from inciting racial discrimination.
2. The International Covenant on Civil Political and Rights (ICCPR)
Kenya ratified the ICCPR on 1st May 1972 and it came into force on 23rd May 1976. According to article 19 of the International Covenant on Civil and Political Rights (ICCPR);
1. Everyone had the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a)For respect of the rights and reputation of others;
(b)For the protection of national security or of public order, or of public health or morals.
Under article 20 of the ICCPR:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
3. The African Charter on Human and Peoples’ Rights (ACHPR)
Article 28 of the ACHPR indicates the limitations on the exercise of free speech by stating that “every individual shall have the duty to respect and consider his fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and respecting mutual respect and tolerance”.
Analysis of the international standards on hate speech
Freedom of expression can be restricted in cases of hate speech because hate speech affects the rights of others. Moreover, states have a duty to prohibit incitement to hatred.
However, the restrictions should meet the requirements set out by Article 19, paragraph 3 of the ICCPR: they should be 1) be clearly set in law and 2) be necessary.
It means that the necessity of the restriction on expression should be established by national authorities in every single case.
In a 2001 Joint Statement, the UN, OSCE and OAS Special Mandates on the right to freedom of expression set out a number of conditions which hate speech laws should respect:
- no one should be penalised for statements which are true
- no one should be penalised for the dissemination of hate speech unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence;
- the right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance;
- no one should be subject to prior censorship; andany imposition of sanctions by courts should be in strict conformity with the principle of proportionality
Kenyan Media and Freedom of Expression viz a viz Hate Speech
The role of the Kenyan media in promoting access to information and promoting freedom of expression can never be understated. In addition, the media helps to shape public opinion as is evident from the outcome of media monitoring covering the first ever multi-party elections in 1992 and the subsequent elections in 1997 and 2002, the referendum in 2005 and the general elections in 2007. This last general election has been reported to have marked a watershed in how the media became a tool for use in perpetuating hate, which eventually escalated into conflict in 2008. An unprecedented public debate concentrated on the role of the media before, during and after the 2007 General Election. With the recent development of vernacular radio as well as social media, the questions about freedom of expression and negative ethnicity as well as negative stereotyping remain alive.
Is this restriction to freedom on expression justified?
Hate speech as provided in the Kenyan law refers to a whole spectrum of negative discourse, including hate or prejudice and inciting to hatred. Hate speech is designed to degrade, intimidate, or to incite violence or prejudicial action against a person or group of people based on their race, ethnicity, nationality or religion. Although termed “speech”, it covers not only oral or written communication but also any other form of expression such as for example movies, arts and gestures (symbolic speech). There should be no doubt that these are not “only words”, but “words that wound” which lead to harm and violence or pose the potential to lead to harm or violence.
According to Kenya National Commission on Human Rights, the 2005 referendum was characterized by deception, chauvinism and hate speech, enhancing the feelings of ethnic hatred among Kenyans. Monitoring of the 2007 elections also revealed that the campaigns were riddled with political propaganda and hate speech. The way the politicians handled the campaigns contributed to the climate of heightened ethnic hatred witnessed after the 2007 elections.
It is an undisputed fact that the arrest and prosecution of political leaders for hate speech during the 2010 referendum contributed to focusing discussions on issues and moved the discussion away from ethnic animosity. People remained free to express their views while retaining the national unity agenda.
The outcome of the three cases indicated that the determination of whether speech amounts to ‘hate speech’ or the promotion of ethnic hatred needs to take into account the entirety of the context in which the speech was made. Manipulation of truth to excite ethnic hatred would lead to an assumption of intention. However, as yet there is insufficient jurisprudence within the Kenyan judicial system to guide the interpretation of the provisions of this progressive legislative provision.
The greatest problem with combating hate speech is not the law, which is quite sufficient, but its observance and application by the authorities. There is a lack of awareness and underestimating of the dangers of hate speech for society as a whole as well as a long lasting tradition of stereotypes and prejudice. Consequently, there is need to guard against hate speech, even where ‘hate’ may not be the primary intention but is the result.
It can be argued that in the everlasting conflict of values, free speech is important, but it is not the only value and it does not have priority over all other considerations. Those other rights, which are no less fundamental than the right to free speech, include - for instance - the right to live without fear and intimidation, the right to dignity (both on the personal and on the group level) and the right to be a member of society on an equal footing with others, without suffering discrimination and exclusion.
 See KNCHR’s Behaving Badly: Deception, Chauvinism and Waste during the Referendum Campaigns.
 See KNCHR’s On the Brink of the Precipice: A Human Rights Account of Kenya’s Post-Election Violence.
 Republic vs Hon Machage and others for hate speech cases in the magistrates Court in 2010
 Joint Statement of 27 February 2001. This document can be downloaded at http://tinyurl.com/alg7l.
 Article 27 (4) prohibits discrimination by the State, either directly or indirectly, against any person on any ground including race, sex, ethnic or social origin, colour, religion, belief, culture, among others.