In the period of investigations conducted after the violent outcome of the 2007 elections in Kenya, the Commission for Inquiry into the Post-Election Violence (CIPEV) identified incitement to violence and hate speech as one of the main triggers behind the widespread violence. The Independent Review Commission, better known as the Kriegler Commission, also noted this. In addition, it recommended that a framework of legislation be enacted to prohibit and prosecute hate speech.
But it is much easier to investigate and recommend than to regulate and implement laws that criminalise hate speech and incitement. The performance of the National Cohesion and Integration Commission since its inception in 2008 has been weak, to say the least. The numerous cases of hateful remarks targeted at ethnic groups, coupled with clear incitement documented in the media, especially over the past year, are yet to see any full convictions. If anything, it has become a matter of exerting public pressure on the NCIC to move forward with prosecutions.
Perhaps the challenge is that though the NCIC was given the authority to investigate complaints of ethnic discrimination, abuse, hatred and incitement of violence, the NCIC did not and still does not have sufficient resources to go after every single complaint brought forward. In addition, as a result of platforms like social media, the number of complaints has been increasing. Be that as it may, the NCIC certainly could commit its limited resources to investigating complaints brought against politicians.
Judiciary: a key factor
Kenya's judiciary in Kenya has been through several reform cycles, including the vetting of judges and magistrates, and a strengthening of its institutional powers. It is still a key factor in any potential investigation of violence. Just like in 2008, the judiciary is still unable to meet the threshold of justice in politically sensitive cases, lagging desperately behind in making convictions about complaints of hate speech or incitement. Indeed in 2015, there were actually no convictions for hate speech despite cases being brought against a number of politicians. It seems that though the NCIC, the police service and the director of public prosecutions may move forward to bring charges in hate speech complaints, the Judiciary remains unable to fully try and reach a verdict in these cases.
The result is clear - a lack of convictions for hate speech that emboldens the political elite and creates a culture of impunity and recklessness. Some, like Mombasa politician Suleiman Shahbal, have gone so far as to claim that the Jubilee alliance will win the 2017 elections "even if they have to rig the polls."
Indeed, just like in the run up to the 2007 elections, claims that one party or other will rig the elections are rife. By 6 January 2016, opposition leader, Raila Odinga, had declared that the Jubilee regime was the "most corrupt and intended to rig the elections".
When you add to this volatile formula the fact that thus far there have been no convictions at the International Criminal Court for the crimes committed in Kenya after the 2007 elections, and that locally none of the mid-level or high-level masterminds has ever seen prosecution, this makes for a highly charged situation in Kenya.
By November 2015, the increase in the number of cases of hate speech complaints against prominent politicians was blamed by the police on the lack of convictions by the judiciary. In a statement to the press, Police Spokesman Charles Owino said that the police had gone after suspects of hate speech, irrelevant of their party affiliations, and collected watertight evidence but the courts had frustrated their efforts.
National Cohesion and Integration Act
A close look at the legal frameworks developed after 2008 to deal with hate speech indicates that Kenya is more than adequately equipped to comprehensively identify and address cases of incitement, hate speech and ethnic discrimination. The National Cohesion and Integration Act of 2008 not only established the NCIC as an investigative body to deal with complaints of ethnic or racial discrimination, but Section 13(1) of the Act provides:
"that a person who uses threatening, abusive or insulting words or behaviour or distributes, shows or plays a recording of visual images 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."
In addition to defining what ethnic abuse is, the act works seamlessly with the provisions in penal code sections 77 and 96 that deal with penalising incitement to violence and enmity between races and ethnic communities. So the problem is not in the legal provisions available.
Perhaps the weak link could be in the collection of evidence and witness testimonies in cases involving powerful and influential politicians. The institutions that are responsible for moving forward on complaints of hate speech are susceptible to the same influences of corruption, intimidation and yes, even human error in the processing of material and witness testimony. Be that as it may, there is no denying that the judges involved in the cases can make a difference in the application of the law. But a number of suspects has got away with either not being in attendance at their own hearing, claiming they were in hospital, or finding a way to reach an out of court settlement.
1200 new police officers
Recently, the NCIC hired 1200 police officers to assist the institution in monitoring hate speech during the campaign period. While this may seem like a rigorous commitment by the NCIC to seek prosecutions, there is no doubt that this measure is likely to fail. The police are not lawyers, and they are not able to adequately decipher the nuances in the different ethnic languages to determine what simply is a cultural reference or an actual hate remark designed to instigate violence. Indeed, even the Office of the Prosecutor of the ICC has faced the same difficulties in deciphering cultural constructs and contexts in language in the case of Deputy President William Ruto and journalist Joseph arap Sang. To expect a police officer to be able to prepare a reasonable report that could be used to bring charges is asking just too much. In any case, the material which is likely to be produced by the 1200 monitors is likely to result in an incredible backlog in documentation. Before charges are actually pressed, several months or even years could pass after the actual elections take place.
There needs to be a greater commitment to the powers given to the institutions charged with curbing hate speech and incitement to violence. The NCIC needs to become realistic - they cannot monitor all candidates or aspirants. It would behoove them to consider a different strategy and make better use of their resources.
Kenyan society is quite a fragile fabric of tolerance. Beneath the surface, the simmering sentiments that exploded after the 2007 elections remain active, and without a stronger commitment by institutions, it would take only a small spark by a handful of reckless and selfishly-motivated politicians to push Kenya back to the brink of widespread conflict once again.
Ms Waitherero is a Nairobi-based writer and communications consultant.