The events of the 2007 post election violence in Kenya led to among other things the establishment of the National Cohesion and Integration Commission (NCIC) after it was obvious that ethnic thinking played a major role in the flare-ups. In addition to the many channels people used to spread, the gospel of ethnic hatred was the media, especially news media. Indeed many reports on the 2007 Post Election Violence have documented the roles played by the media and politicians in fanning the ethnic clashes and violence.
The National Cohesion and Integration Act which establishes the National Cohesion and Integration Commission makes discrimination on the basis of ethnic, religious or racial grounds a criminal offence, bars comparison of persons of different ethnic groups and makes it is illegal to harass another person based on his race or ethnicity. In addition, the Act criminalised hate speech, which it defines to include threat, abusive words/action or material and public plays meant to fan ethnic, racial or religious hatred. Similarly, the proposed Media Bill 2011 and Independent Communication Commission of Kenya Bill 2011 outlaw use of media forums to spread hate speech and stipulate still penalties on the same.
In addition, Kenya is a signatory to the International Convention on Civil and Political Rights and a state party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).
Similarly, Kenya is a signatory to international and regional conventions that guarantee freedom of expression as a fundamental human right.
A lot of work has been done so far in trying to stem hate speech in the country by the said bodies. Indeed as the election mood sets in and campaigns start, a lot of talk will start about misgivings by groups about how they have been targeted or left out of development. As it is now, a lot if information exists from the many studies that have been done about which regions and communities have been favored since Kenya got independence.
Some of the information is already circulating on new media and is obviously a concern for the NCIC and Government. From their public pronouncements over the last few months, the Commission has isolated media as one of the key agents to monitor, investigate and prosecute in relation to hate speech- read- focus will be on news media- twitter, facebook and blogs- which were identified as key players in the 2007 post election violence. Indeed, in addition to politicians, a journalist is among the people at ICC facing among others allegations of spreading hate speech.
The focus on media arises from the past reports that accused the media of irresponsible reporting that leads to electoral violence, ethnic hatred and the tendency to focus on side shows and non issues instead of information that would inform, educate and sensitize the public to make decisions that bring about positive change.
The NCIC and ICCK will start receiving a lot of complaints relating to hate speech from a lot of people. But as we prepare to start receiving these complaints, the Government and by extension the NCIC must be reminded of a few facts about the thin line between hate speech and freedom of expression.
Kenya has a constitutional guarantee to freedom of expression and access to information under Articles 34 and 35 while at the same time as a signatory to several regional and international conventions providing for freedom of expression. The Government has a duty to ensure that people get to know information relating to facts that show how some regions and groups have gained advantages over others in access national resources, information which they can share freely.
NCIC must be reminded that while it is within the States mandate to legislate against hate speech as provided for in Article 20 the International Covenant on Civil and Political Rights, such regulations must not infringe/ curtail freedom of expression and access to information. Measures to handle hate speech should not impede on the peoples’ right to freely express themselves.
Carte blanche attempts to contain hate speech may grossly violate the rights to freedom of expression, press freedom and access to information if not done within permissible restrictions in international law. Limiting debate about contentious issues, including access to national resources, will not address the underlying social roots of the prejudice that undermines equality.
It is prudent that Government takes precautionary measures to ensure that people or groups intent on or deemed to be causing hatred on whatever grounds are cautioned against such in time to while at the same ensuring that their right to freely express themselves is not curtailed. The Permanent Secretary for Information Dr Bitange Ndemo was quoted saying the Government had compiled mobile phone numbers and blogs that were used to spread hate speech in 2007- what has the Government done with the data. What has the NCIC learnt from the Truth Commission that relates to hate speech? Rushing to courts might be the best approach as the recent case in which NCIC lost to some politicians has shown nor targeting the media for harassment.
Bwire works with ARTICLE 19 Eastern Africa
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