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Kenya: Legislation, Hate Speech, and Freedom of Expression

Lawrence M. Mute

23 October 2008

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analysis

Lawrence M. Mute's presentation draws upon Kenya's experiences as documented by the Kenya National Commission on Human Rights (KNCHR) in the course of its work monitoring the 2005 Constitutional Referendum and the 2007 General Elections. It explains the basis upon which the national commission is persuaded that it is feasible and legally allowable for hate speech legislation to be enacted in Kenya in a manner that does not violate the constitutional right of Kenyans to the freedom of expression. It outlines the key elements that should be included in hate speech legislation and the manner in which those elements should be framed in order, on one hand, to protect Kenyans against hate speech while, on the other hand, to ensure that their right to express themselves is not undermined.

The concept of hate speech is understood and used variously by different people and in different contexts. Generally, hate speech is that which offends, threatens or insults groups based on race, colour, religion, national origin, gender, sexual orientation, disability or a number of other traits.(1) From a European perspective, hate speech is: 'understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance.' It is perceived as 'all kinds of speech that disseminate, incite or justify national and racial intolerance, xenophobia, anti-Semitism, religious and other forms of hatred based on intolerance.'(2) At the same time, hate speech indicates the worst forms of verbal aggression towards those who are in a minority in terms of any criteria or who are different.(3)

At the KNCHR, hate speech has been defined as any form of speech that degrades others and promotes hatred and encourages violence against a group on the basis of a criteria including religion, race, colour or ethnicity. It includes speech, publication or broadcast that represents as inherently inferior, or degrades, dehumanises and demeans a group on the basis of the criteria above.(4) The term is also commonly used to refer to speech or expression which is intended to hurt and intimidate a person or group because of their sexual orientation, disability or other personal characteristics.

The basic characteristic of what amounts to hate speech is that the essential intent of any such expression is to incite prejudicial treatment or action against a group of people whose classification as such is prompted by common discriminatory criteria. Perhaps the most apt way of clarifying this is to say that language becomes hate speech when an individual or group uses it to degrade another group or engender discrimination on it for political objectives (such as winning an election) or social objectives (such as entrenching male domination in the workplace).

Kenya's experiences of political campaigns during the 2005 Constitutional Referendum and the 2007 General Elections indicate either one or both of the following: that politicians have a penchant for speechifying in a manner designed to incite the public; or that politicians have an almost instinctive predilection for inciting the public. Negative effects of hate speech were witnessed in their worst and most vivid form when in 1994, following progressive hate propaganda carried out by politicians and national media, the Rwanda genocide took place. Within Kenya's context, one of the findings of the National Commission in its investigations on the post-election violence dealing with the issue of hate speech and genocide was framed thus:

'Kenya presently exhibits characteristics which are prerequisites for the commission of the crime of genocide. One such feature is the dehumanization of a community using negative labels or idioms that distinguish the target group from the rest of society. Communities such as the Kikuyu and Kisii resident in the Rift Valley were referred to by some Kalenjin politicians as 'madoadoa' ('stains') (or 'spots') before and during the post-election violence... Consequently, unless the state and Kenyans take remedial measures, the probability of genocide happening in Kenya at some future point in time is real.' (5)

The distinction between what could be termed insults and hate speech can be uncertain unless one keeps in mind the injunction that for words to amount to hate speech, they must adhere to the following two determinants. First, they must 'maintain a sphere of operation that is not restricted to the moment of the utterance itself', i.e., that the said words must express or imply a built-in call to action. While it is a fact that the subject of discussion may be an individual who indeed is not circumcised, usage of the phrase 'Kiiji' (the Kimeru word for an uncircumcised boy) becomes hate speech when the speaker intends the hearer to act, for example, by not voting for the 'Kiiji'. The simile 'Hitler-like' has similar intentions, as does the Kiswahili phrase 'tuondoe madoadoa' which, in respect of other communities, anticipated that the Kalenjin community would clean itself of 'spots' or 'stains'.

Second, and arising from the first dynamic, hate speech is constructed in the context of inter-group relations. A statement which would otherwise be totally innocuous in a mono-ethnic situation (for example when I call my son 'Kiiji') may turn into hate speech when used in an inter-ethnic setting. In the post-election violence, for example, the National Commission states:

'Many of the ethnic hate messages and much of the ethnic stereotyping appeared on live phone-in programs. It was common to hear descriptions on Kass FM before the elections of the Kikuyu as greedy, land-hungry, domineering and unscrupulous, as well as thinly-veiled threats, like "the time has come for us to reclaim our ancestral land", or "people of the milk" (Kalenjin) must "clear the weed" (Kikuyu).'

There are many more examples of hate language captured in the commission's extensive database(6) as well as our reports.(7)

HUMAN RIGHTS IMPERATIVES

Freedom of expression is a fundamental human right guaranteed in international as well as regional human rights instruments (Article 19 of the International Covenant on Civil and Political Rights (ICCPR) (8), and Article 9 of the African Charter on Human and Peoples' Rights (ACHPR)). (9) These human rights treaties, however, anticipate at least two circumstances subsequent to which the state may make interventions in respect of the absolute exercise of the right to freedom of expression.

First, the state has the right to impose limitations on the right to freedom of expression, and various types of expression have different levels of protection for them. For a limitation to be allowable, it must be provided for by law; it must pursue a legitimate purpose; and such interference must be necessary in a democratic society. Legitimate purposes include protecting the rights or reputations of others, and protecting national security, public order, or public health or morals (Article 19[3] of the ICCPR, and Article 9[2] of the ACHPR).

Second, human rights law also anticipates circumstances under which expression may be suppressed or, in human rights language, 'prohibited' totally. Article 20 of the ICCPR requires parties to 'prohibit[] by law,' inter alia, '[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence...' Similarly, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) requires parties to 'condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form.' In particular, it obliges parties to criminalise 'dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin,' as well as participation in 'propaganda activities, which promote and incite racial discrimination.'(10)

The regulation of expression is then clearly within the capacity of states in terms of international human rights norms. A critical determinant of whether expression should be prohibited or limited, therefore, is: does the expression in question perpetuate discrimination of a group - balancing between the freedom of expression and the obligation to protect against discrimination (for example, expression which causes Muslims as a group to be discriminated directly or indirectly)? International jurisprudence such as from the European Court of Human Rights does indeed clarify that the freedom of expression is applicable to both inoffensive ideas or those that are favourably received, but also ideas that offend, shock or disturb, so long as such ideas do not perpetuate discrimination or otherwise are justifiable as pressing social needs in terms of the limitations set out in Article 19[3] of the ICCPR. John Cerone argues that it is not a group's feelings that should be protected by human rights law, but rather how expression at issue engenders others' attitudes against the group respecting which adverse expression has been made.(11)

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