Legislation, hate speech, and freedom of expression in Kenya

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)

PROPOSALS FOR HATE SPEECH LEGISLATION

CONSTITUTIONAL CONTEXT

Once we at the national commission were clear that our thinking on hate speech would not clash with international human rights normative standards, our next concern was to situate any proposals on hate speech legislation within our constitutional framework. Section 79 of the Kenyan constitution provides thus:

‘1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.

‘2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision- a) that is reasonably required in the interests of defense, public safety, public order, public morality or public health; b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or c) that imposes restrictions upon public officers or upon persons in the service of a local government authority, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.’

The obvious critique of Section 79 of the constitution is its long-winded and meandering character, but it does set out the essential principles and limitations articulated in Article 19 of the ICCPR. Of more importance is its failure to make a reference akin to Article 20 of the ICCPR on how hate speech should be treated. This lacunae was filled in competently under Article 49 on freedom of expression in the Draft Constitution of Kenya, 2004,(12) which inter alia provides thus:

‘49.(1) Every person has the right to freedom of expression, which includes… (2) The right referred to in clause (1) does not extend to - (a) propaganda for war; (b) incitement to violence; or (c) advocacy of hatred that – (i) constitutes vilification of others or incitement to cause harm, or (ii) is based on any prohibited ground of discrimination…’(13)

LEGISLATIVE CONTEXT

Our various studies did then indicate that present legislation is woefully inadequate as a basis for protecting against hate speech, ethnic intolerance and incitement to hatred.

Section 77(3)(e) of the Penal Code provides that:

‘(1) Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding three years… (3) For the purposes of this section, ‘subversive’ means… (e) intended or calculated to promote feelings of hatred or enmity between different races or communities in Kenya: Provided that the provisions of this paragraph do not extend to comments or criticisms made in good faith and with a view to the removal of any causes of hatred or enmity between races or communities.’

In turn, Section 96 of the Penal Code does also provide criminal sanctions against what it terms ‘incitement to violence and disobedience of the law’; it provides thus:

‘Any person who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints or publishes any words, or does any act or thing, indicating or implying that it is or might be desirable to do, or omit to do, any act the doing or omission of which is calculated - (a) to bring death or physical injury to any person or to any class, community or body of persons; or (b) to lead to the damage or destruction of any property; or (c) to prevent or defeat by violence or by other unlawful means the execution or enforcement of any written law or to lead to defiance or disobedience of any such law, or of any lawful authority, is guilty of an offence and is liable to imprisonment for a term not exceeding five years.’(14)

Section 77’s focus on controlling ‘subversive’ activities has, in practice, largely meant it was used to mobilise against political figures or ideas in opposition to the government. Thus, the provision failed to encompass the proper object of prohibition to incitement to hatred legislation that is to protect individuals, groups or communities from hostility, discrimination or violence. Second, it offers no guidance as to what would be deemed ‘hate speech’, and the acts that would be deemed to constitute ‘incitement to hatred’ are obscure. Furthermore, section 77’s prescription of defences to the offence is vague, thus further making it difficult to discern forms of expression constituting an offence. Many of these criticisms also apply to the provisions in Section 96 of the Penal Code. The bottom-line is that neither of these provisions makes discrimination of a group as the express essential ingredient for acts of expression to become prohibited or culpable.

PRINCIPLES TO GUIDE PROPOSED HATE SPEECH LEGISLATION

This was the context within which we undertook broad consultations with government and civil society players before preparing the Prohibition of Hate Speech Bill, 2007, together with the Kenya Law Reform Commission. While doing this, the National Commission had to be extremely careful since, as I have already implied, the expectation usually is that rights bodies should tend to provide exclusive backing for rights almost to the exclusion of taking cognizance of limitations to rights or prohibited grounds. In fact, we were very well aware that rights are never absolute.

Consequently, our legislative proposals were informed by the following essential principles:

- Any criminal legislation must be clearly and narrowly defined to avoid ambiguity and misinterpretation
- No one should be criminally penalised for the dissemination of hate speech unless it is shown that they did so with the intention of inciting discrimination, or that the foreseeable consequence of their actions was incitement
- Any imposition of sanctions should be in strict conformity with the principle of proportionality, and criminal sanctions, in particular imprisonment, should be applied only as a last resort
- Prohibition of hate speech must be formulated in a way that makes clear that the sole purpose of such prohibition is to protect individuals from hostility, discrimination or violence, rather than to protect belief systems, religions, or institutions as such from criticism
- The law should send a strong state-sanctioned message that hate speech is unacceptable, harmful, dangerous and shall not be tolerated
- It should further the value of legal equality through substantive and meaningful legal measures
- It should fulfil Kenya’s international law obligations. International human rights law condemns and demands the proscribing of hate speech by national jurisdictions and as such creates binding legal obligations on state parties to relevant international law instruments including ICCPR, ACHPR and ICERD
- It should provide an environment where information and ideas can be proffered and exchanged in a civil and respectful manner, thus fostering meaningful democracy and a tolerant citizenry
Law against hate speech and incitement to hatred must be far more proactive than reactive so as to serve a preventative function that is more valuable than dealing with the consequences of intolerance.
The objects of the Prohibition of Hate Speech Bill, 2007, are:
- To foster national unity by promoting responsible exercise of the right to freedom of expression in political, social and other public discourses
- To preserve public order
- To preserve and promote the ethnic and cultural diversity of Kenya and
- To promote a democratic society.

A PLETHORA OF CHALLENGES

Even as we propose legislative sanctions to tackle hate speech in Kenya, we realise that multiple challenges will face the tackling of hate speech. We are the first to acknowledge that every social problem may not simply be remedied via criminal sanctions, and that broader policy interventions responding to social pressures may be better long-term solutions to hate speech. Furthermore, even where legislation is employed, pertinent questions include whether or the extent to which identified speech may be proscribed. As we well know, an oppressed group may appropriate the language of victimisation and discrimination as a strategy for combating hate.(15) Should victims then be punished when they use upon themselves language which if used by others would be hate language? The bottom-line, of course, is that society presently has a responsibility to protect victims from discrimination or harm. The intention of the user of language will remain a key determinant of whether an individual is culpable for hate speech or not.

References:
(1) Paul Macmasters, ‘Must a Civil Society be a Censored Society?’. Human Rights, American Bar Association, 1999, Vol. 4, No. 26.
(2) Recommendation No. R (97) 20 on ‘hate speech’, adopted by the Committee of Ministers of the Council of Europe in 1997.
(3) Dunja Mijatovic, ‘Are Universal Anti-Hate Speech Policies Needed and Possible?’. Cited in ‘Preparation of Hate Speech Legislation Draft Legislation for the Kenya National Commission on Human Rights’, Background Paper, KNCHR, March 2007.
(4) ‘The Need for Hate Speech Legislation for Kenya’. Kenya National Commission on Human Rights (KNCHR), 2006.
(5) ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post-2007 Election Violence’. KNCHR, August 2008.
(6) As part of its post-election violence investigations, the national commission collected data from 136 constituencies on different aspects of the violence, including use of hate speech.
(7) Supra footnote 5; also see Behaving Badly: Deception, Chauvinism and Waste During the Referendum Campaign, KHRC and KNCHR, 2006; Draft Elections Monitoring Report, KNCHR, 2008.
(8) Article 19 of the ICCPR states: ‘1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order ... or of public health or morals.’
(9) Article 9 states thus: ‘1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law.’
(10) One particular type of expression has been singled out for the strongest suppression obligation. The Convention on the Prevention and Punishment of the Crime of Genocide obliges all states to criminalise, prosecute and punish the international crime of incitement to genocide.
(11) John Cerone, ‘Inappropriate Renderings: The Danger of Reductionist Renderings’.
(12) Also referred to as the Bomas Draft Constitution, adopted by the National Constitutional Conference on 15 March 2004.
(13) Significantly, Article 49 of the Proposed Constitution of Kenya, 2005, also called the Wako Draft Constitution, replicates these provisions on freedom of expression in terms exact to those in the Bomas Draft Constitution (see text for ibid).
(14) The Second Schedule of the Media Act, 2007, sets out the Code of Conduct for the Practice of Journalism which in Regulation 11 provides as follows:
‘(a) News, views or comments on ethnic, religious or sectarian dispute should be published or broadcast after proper verification of facts and presented with due caution and restraint in a manner which is conducive to the creation of an atmosphere congenial to national harmony, amity and peace. (b) Provocative and alarming headlines should be avoided. News reports or commentaries should not be written or broadcast in a manner likely to inflame the passions, aggravate the tension or accentuate the strained relations between the communities concerned. Equally so, articles or broadcasts with the potential to exacerbate communal trouble should be avoided.’
The mechanism for enforcing this Code is, however, by and large still not in place, nearly one year after legislation of the Act.
(15) Supra footnote 1.

* Lawrence M. Mute is commissioner at the Kenya National Commission on Human Rights (KNCHR).
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/