Hate speech is any kind of communication in speech, writing or behavior that attracts or uses pejorative of discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.

Hate Speech is rooted in INTOLERANCE and HATRED and can be DEMEANING and DEVISIVE.  There is no place for hate speech in a democratic and law abiding society.  This however is viewed by many people as an interference or limitation of freedom of speech that is protected by Article 33 of the Constitution of Kenya 2010.

The Constitution of Kenya 2010, Article 33 (27) specifically limits the Freedom of Expression in particular:-

  1. Propaganda for war
  2. Incitement to violence
  3. HATE SPEECH
  4. Advocacy of hatred e.g. ethnic incitement, vilification of others or incitement to cause harm
  5. Any hatred on any ground of discrimination that is specified in Article 27(4) of Constitution of Kenya 2010
  6. In exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.

Hate Speech is very rampant during the election period.  After the post election violence of 2007 and 2017 it was realized that a contributor to escalation to violence was HATE SPEECH.  It is a threat to national cohesion and peace.

The National Cohesion and Integration Act is the relevant law to monitor, investigate, prosecute and educate on hate speech in Kenya.  The Act in section 13(1) defines hate speech:

13. Hate speech
(1) 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 performance 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 behavior 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.

The punishment for hate speech is a fine of maximum of Kshs.1M or imprisonment for a term upto 3 years.

Apart from the National Cohesion and Integration Act other laws also protect against hate speech including:-

  1. The Constitution of Kenya 2010
  2. Penal Code
  3. Political Parties Act

In Kenya various politicians have been arrested and even charged for hate speech including but not limited to MP Moses Kuria, MP Oscar Sudi, MP Johanna Ngeno, MP Richard Onyonke, Women Rep Mishi Mboko, MP Florence Jematia, Fredinard Waititu, Junet Mohamed, Aisha Jumwa to name a few.  For the foregoing it is clear that the offences speech is  a representation of leaders from a cross section of Kenya and of both genders.

Factoring the explosive negative impact of HATE SPEECH upon the citizenry, each citizen has to monitor and report any incident.  You may report to the police or NCIC for prosecution.

Despite several arrests and charges vary often the prosecution is not successful in prosecution of HATE SPEECH offences.  Some of the challenges include:-

  1. Broad vague definition of hate speech in section 13
  2. Zoning of “hot spots” interferes with freedom of expression
  3. Law does not take into account the social, political context, status of the speaker, intent to incite against an identifiable target group
  4. Law does not do enough to react and hinder extent of its dissemination, likelihood of harm and imminence of violence.
  5. Witnesses’ credibility, availability.
  6. Evidence of social, political and cultural context experts.
  7. Vigorous defenses by  lawyers
  8. Translation accuracy.
  9. Impact of the utterance.

Do you think the current law is putting a STOP or deterring HATE SPEECH in Kenya? What more should be done? Share your view in our comments section.

LawQuery Ltd

Your Legal Partner

#KnowYourRights

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.