THE CONCEPT OF HATE SPEECH UNPACKAGED. The political heat, generated by the flamboyant return of H.E the Rt. Hon.Raila Amolo Odinga, from Boston in the US,has spontaneously brought to the fore, this applied legal-cum-linguistic terminology,hate speech, to the extent that a national legal debate on the same has been conducted frequently by both the legal scholars and politicians themselves as to the subsistence of a thin line between hate speech and freedom of expression. In consequence thereof, a varied colossal but divergent construction of the actual meaning, connotations and viral effect as to the magnitude and implications of the so called hate speech have trooped in the offing. Whereas it has been the observation of the Director of Public Prosecution, one Keriako Tobiko, that some utterances and public spat by our leaders specifically from the CORD Coalition, because his inclusion of the JUBILEE brigade was a too little too late lackluster afterthought which was tantamount to playing to the public gallery for cheap and myopic publicity stint,amounted to hate speech, I want to strongly disagree with my learned senior on his interpretation of the law on this particular issue.It is imperative to invite all and sundry to note the fact that, hate speech was criminalized with the enactment of the National Cohesion and Integration Commission Act, No.12 of 2008 . As usual, citations of the provisions of statutes, Acts of Parliament, the Constitution and other instruments and or authorities of law are normally at my finger tips, and I am gonna entertain my readers in regards to that discourse. Section 13 of the National Cohesion and Integration Act, No.12 of 2008 provides the following in subsection(1) a person who- (a)uses threatening, abusive or insulting words or behavior or displays any written material; (b) publishes or distributes any 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, insulting or involves the use of threatening, abusive or insulting words or behavior commits an offense, if such a person intends thereby to stirrup ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up. Fellow Kenyans, to this extent, the operative words herein are two; (i)intends; and (ii) the phrase, ethnic hatred. It is therefore interesting to note, that the commission of all those acts captured in section 13(1)(a)(b)(c)(d) and (e) of the NCIC Act, No.12 of 2008 notwithstanding, there shall be an intention to stirrup ethnic hatred. The NCIC Act, No.12 of 2008 pre-empts a quandary on the meaning of ethnic hatred as contextualized in light of hate speech and enshrines how it is construed in section 13(3),in this section,ethnic hatred means hatred against a group of persons, defined by reference to color, race,nationality(including citizenship) or ethnic or national origins. This begs the following questions; 1). Was there intention by the CORD allied politicians to cause ethnic hatred? 2). Was there actual hatred in the context of section 13(3) of the NCIC Act, No.12 of 2008? It is my humble, but most sincere view, that before answering the aforementioned questions, any smart law student who sat in a class of legal systems and methods will tell you that there exist only two ingredients to warrant a successful prosecution in so far as interpreting the key words forming the skeleton and flesh of hate speech incidental thereto the proviso of section 13 of NCIC Act, No.12 of 2008, that is; (a)there shall be intents;and (b)there shall be the actual ethnic hatred. This answers question 1). and 2). above in the negative respectively, thereby weakening the prosecutions case, because for a Court of law to arrive at prosecuting the alleged hate mongers or for it to return a guilty verdict, there shall be a prima facie case which possess substantial probative value. It is worthy to note, that the established prima facie case depends wholly on the existence of the aforesaid ingredients (a) and (b), above forming the backbone, which means that, the non-existence of one or all of the ingredients breaks the establishment of a prima facie case. In spite of all these, the Constitution of Kenya 2010, gives it a spectacular parting shot when it observes in Article 33(1) that, every person has the right to freedom of expression, which includes- (a) freedom to seek, receive or impart information or ideas; and (b) freedom of artistic creativity. In a nutshell, section 13(1)(a)(b)(c)(d) and (e) of the National Cohesion and Integration Commission Act, No.12 of 2008 are inconsistent with Article 33(1)(a) and (b) of the Supreme law of the land, promulgated in 2010. The same Constitution of Kenya 2010 stipulates in Article 2(4), that, any law, including the customary law, that is inconsistent with the Constitution is void to the extent of the inconsistency, and any act or omission in contravention of hisConstitution is invalid. The following is a decided Constitutional Law case on hate speech, which not only catapults, but equally reinforces my legal assertions that a limitationon the freedom of expression must be justified Okiya Omtatah Okoiti v Attorney General & 2 others Petition No. 192 of 2013 High Court at Nairobi D. S. Majanja, J. April 16, 2013 Reported by Phoebe Ida Ayaya and Derrick Nzioka Download the Decision Issues Whether a ban of the play “Shackles of Doom” was a violation of the freedom of expression guaranteed under article 33 of the Constitution of Kenya 2010. Whether the protection afforded to freedom of expression in article 33 of the Constitution of Kenya 2010 expressly excluded hate speech. What remedy the court could issue to secure the right and freedom of expression. Constitutional Law -fundamental rights and freedoms – freedom of expression – violation of the freedom of expression – protection of freedom of expression – whether protection of freedom of expression expressly excluded hate speech – remedy in instances where the freedom of expression has been violated – article 33 of the Constitution of Kenya, 2010. Read More... Article 33 of the Constitution of Kenya, 2010 33. (1) Every person has the right to freedom of expression, which includes— (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research. (2) The right to freedom of expression does not extend to— (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that— (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27(4). (3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others. Held: The court was aware of the centrality of the rights and freedom of expression in a democratic state, and it’s obligation to give effect to the enjoyment of fundamental rights and freedoms to the fullest extent. Those freedoms had been hard fought hence it would carefully scrutinise any action that would tend to undermine those freedoms. Plays such as the one banned occurred in school settings with certain rules and standards but that did not limit or diminish the rights of students to express themselves or exercise their creative freedom or that of the public to receive or impart information and ideas. In the current case and on a prima facie basis, it was difficult to justify the disqualification, as the play must have had passed several stages of competition as evidenced by the fact that it had qualified for the national competition. It was watched by several audiences in the zone, district and province and was scrutinised by the various expert adjudicators at those levels before being disqualified on account of hate speech at national level, under the same rules and regulations governing the Kenya Schools and Drama Festival. It was true that the protection afforded to freedom of expression in article 33 of the Constitution of Kenya, 2010 expressly excluded hate speech, but reference to hate speech often stirred up emotional responses and may have had been used to limit what was an otherwise legitimate expression of ideas which may have had resulted in a cover up to assail the freedom of expression protected under the Constitution. Plays were media of expression of ideas which were sometimes subversive of accepted ideas. They may have challenged long held beliefs and conventional wisdom. The political and social history of Kenya was replete with instances where plays were banned for being seditious or subversive. Some plays were banned because they went against the grain of the accepted political thinking. Kenya had moved on and a ban, such as the one imposed by the Kenya National Drama Festival had to be justified as it constituted a limitation of the freedom of expression. Kenya was not such a weak democracy whose foundation could not withstand a play by high school students. If democracy was to flourish then it was students who at an early age had to understand the meaning of freedom of expression. The 1st respondent was given an opportunity to justify its action but had not done so and in the circumstances, the disqualification of Butere Girls High School from presenting the play “Shackles of Doom” constituted a ban, and was therefore a violation of the freedom of expression guaranteed under article 33 of the Constitution of Kenya, 2010. In granting such relief as would protect the purposes of the Constitution, a suitable remedy would be one that asserted the supremacy of the Constitution. The play “Shackles of Doom” by Butere Girls High School to be presented at the Kenya Schools and Colleges Drama Festivals, and the matter was marked as settled on those terms.
Posted on: Wed, 25 Jun 2014 13:40:02 +0000
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