In the late 1980s when Kenya was still a de jure one-party state, a powerful cabinet minister is on record to have publicly declared, ‘All the Igbos must lie low like an envelope or suffer for their intransigence.” He was contemptuously referring to members of an economically dominant ethnic community who were living and doing business in his constituency whom he perceived as not dancing to his political tune. The popular tune then was that you were either pro- or anti-establishment. There was no middle ground then because any public figure that was not publicly supporting the regime was (mis)construed to be sympathetic to the opposition.

Needless to say, the inflammatory remarks were instantly picked by the mainstream media and subsequently fuelled ethnic tensions between the concerned communities. Such war cries have continued unabated over the years with varying degrees of venom. Hate speech, or absence of it, was neither here nor there then. Political bigwigs were ostensibly ‘always right’ and woe unto those who dared to question their perceived wisdom.

Those were probably the darkest days when politically correct leaders could break the law with impunity and get away with it. The political elite and their ‘untouchable’ cohorts blatantly engaged in ‘hate think’ (harbouring negative thoughts in one’s mind that often precede hate speech) and hate speech as the media aired the venom with relish. There was no proper legislation to mete out punitive measures against those who intimidated or threatened fellow citizens. Thus, inter-ethnic tensions have built up over the years, culminating in the ethnic clashes that Kenyans witnessed in 1992, 1997 and which climaxed in 2007. The latter left 1,133 innocent Kenyans dead and 500,000 displaced. Hundreds of others are still languishing in IDP camps nearly three years later.

Most of the clashes had a direct bearing on the utterances attributed to political leaders who also posed as self-appointed champions of the rights of their respective ethnic communities. Incidentally, a state of near-anarchy often ensued in certain political hotspots in the Rift Valley and western Kenya where leaders made and overtly promoted hate speech, thus sparking inter-ethnic violence. The effects of the bungled 2007 general elections created the need for proper legislation to guard against utterances, broadcasts or publications that would fuel ethnic hatred on grounds of colour, race, nationality or ethnicity. In this regard, one is wont to conclude that the events of 2007-2008 were a blessing in disguise as they gave both the leaders and the citizenry a wakeup call on the need to live in a tolerant, cohesive and integrated manner in an atmosphere of cultural diversity.

With the promulgation of a new constitution on 27 August 2010, the foregoing scenario will hopefully be consigned to the dustbin of history. The Media Act (2007), the National Cohesion and Integration Act (2008), the Code of Conduct for the Practice of Journalism in Kenya and the new constitution clearly spell out what constitutes hate speech.
However, it is not enough to have legislation against hate speech or even ‘hate think.’ In most cases, people harbour the negative thoughts in their minds. There is need to conduct civic education to dispel gender, cultural, racial, social and ethnic stereotypes that exist in public domain. It is the latter that often metamorphose into ‘hate think’ and eventually blossom into hate speech when uttered publicly and directed to vulnerable individuals or groups.

And so what is this monster called hate speech? Wikipedia, the resourceful online encyclopedia, gives a general definition of hate speech as any communication which disparages a person or group based on race or sexual orientation. Within a legal framework, Wikipedia describes hate speech as ‘any speech, gesture, conduct, writing or display which is forbidden because it may incite violence or is prejudiced against a protected individual or group; or because it disparages or intimidates a protected individual or group.’ The law may identify a protected person(s) by race, gender, ethnicity, creed, nationality or other distinctive characteristic. Article 27(4) of the newly enacted Kenyan constitution adds other finer details of discrimination such as pregnancy, marital status, health status, conscience, disability, birth and language to the above list.

In most Commonwealth states whose legislation is modeled along the English law, a victim of hate speech may seek redress under civil law, criminal law or both, depending on the severity of the case. According to Article 13 (1) of the National Cohesion and Integration (NIC) Act (2008) of the Law of Kenya, hate speech constitutes use of threatening, abusive or insulting words or behavior; or exhibiting performance, programme , visual image or printed matter which is aimed at stirring up ethnic hatred or harm.

Article 13 (3) of the NIC Act defines ‘ethnic hatred’ as intense dislike against a group of persons defined by reference to colour, race, nationality (including citizenship), ethnic or national origins. The Act states that anyone convicted of promoting hate speech shall be liable to a fine not exceeding one million shillings or jail term of up to three years, or both.

Both newsmakers and media practitioners risk prosecution of they are involved in hate speech, whether wantonly or by default. Consequently, any media house that publishes or airs hate speech will supposedly face the full wrath of the law … or will it?

Article 62 (1) of the NIC Act prohibits utterances that are intended to incite feelings of contempt, hatred, hostility, violence or discrimination against an individual, group or community on the basis of race or ethnicity. Article 62 (2) specifically targets the media and proscribes the publication or broadcast of the above utterances. This calls for self-regulation on the part of the media, newsmakers and the public in general.

It is against this backdrop that in May 2010, MPs Wilfred Machage, Fred Kapondi, Joshua Kutuny and political activist Christine Miller were arraigned in court for allegedly uttering hate speech against some ethnic communities during the referendum campaigns. The case is still pending in court though the accused were released on bail.

Incidentally, all the accused were in the ‘No’ side. The media has been duly publishing and broadcasting the ongoing case without taking sides. It is not clear whether members of the ‘Yes’ team shunned hate speech or whether the mainstream media simply gave them a blackout. However, it was not lost on readers and viewers alike, that the government side received extensive and prime space and time, both in terms of news and advertisement.

Article 25 of the Code of Conduct for the Practice of Journalism says, ‘Quoting persons making derogatory remarks based on ethnicity, race, creed, colour and sex shall be avoided. Racist or negative ethnic terms should be avoided. Careful account should be taken of the possible effect upon the ethnic or racial group concerned, and on the population as a whole, and of the changes in public attitude as to what is and what is not acceptable when using such terms.’

With the foregoing statutes firmly entrenched in the constitution, one would expect both the mainstream media and the political leadership to shun hate speech like the plague since the law is sacrosanct. A survey of the media’s coverage of the 2010 referendum revealed relative restraint on the part of the mainstream media compared to the one held in 2005. This is not to say that there was no bias at all in media content but explicit expressions of hate (if any) were largely given a blackout, perhaps in the spirit of self-regulation.

The Interim Independent Electoral Commission (IIEC) hailed the media for a balanced coverage of the 2010 plebiscite. While presiding over the release of a report on a survey of media performance on the referendum on 24 August 2010 , Ken Nyaundi, an IIEC member, said unbiased coverage reduced the likelihood of the ‘Yes’ and ‘No’ camps disputing the final tally. Unlike the 2007 electioneering period when even the media appeared to be polarised along ideologies and personalities, even the leaders of opposing camps acknowledged that the mainstream media played a fundamental role in deciphering the proposed legislation. The public was thus able to cast its vote from an informed position rather than acting out of emotion or blindly following the whims of political leaders.

‘We expect the media to continue being responsible and not mere conveyors of what is happening,’ the Daily Nation of 25 August 2010 quoted Nyaundi as saying.

The survey was conducted by Peace Pen Communications, an NGO that monitors the media in Kenya, over a period of two weeks in the run-up to the referendum. The report, titled, ‘The Spotlight on Media Coverage of the Kenya Referendum Campaigns 2010’, noted that the media generally exercised caution and restraint compared to the 2005 referendum and the 2007 general elections. Speaking at the same function, the Editors Guild chairman, Macharia Gaitho, summed up the cautious stance of the media thus, ‘We learnt in 2007-2008 and resolved never to repeat the same mistakes.’

Meanwhile, leading pollsters Synovate and Infotrak Harris have recently highly rated the media as the most reliable and trusted sources of information on the new constitution and prior to the 2010 referendum.

Not that certain Kenyan politicians did not attempt to brush shoulders with the law on divisive utterances. Indeed, there is a delicate balance between exercising freedom of expression and engagement in hate speech. So much so that some may find it challenging to tell where freedom of expression ends and hate speech begins. The NCI Act as well as the new constitution are drafted in a way that they protect the citizenry and residents against hate speech and at the same time ensure their right to express themselves. The dividing line remains thin, though. The Bill of Rights in the constitution stipulates that every person has the right to freedom of expression, which right does not extend to, inter alia, hate speech, advocacy of hatred or incitement to violence (Article 33).

In the run-up to the Matuga by-election campaigns, Mary Onyango, the National Cohesion and Integration Commission (NCIC) vice-chair, accused cabinet minister Chirau Ali Makwere of engaging in hate speech, an allegation that the minister vehemently denied. ‘Angry, yes, hate speech, no!’ Makwere tersely responded when the media sought his clarification on the allegation. The Commission had accused him of violating Article 62 (1) of the NIC Act. Perhaps the greatest tragedy facing the NCIC is that it is no better than a toothless bulldog in the new order. It has no mandate to prosecute hate speech suspects. It has to rely on the goodwill of the police and the Attorney General to mete out justice.

During the referendum campaigns, NCIC Chair, Mzalendo Kibunja, was quoted in the media as saying that the commission had received complaints from the public on ‘irresponsible’ utterances attributed to some leaders. He reportedly said that NCIC had significant proof, issued cessation notices to the accused persons, and even requested security persons to charge them. Kibunja revealed that the NCIC was investigating individuals who had been accused of uttering tribal and socially divisive remarks. Meanwhile, cabinet minister William Ruto reportedly accused Kibunja of indulging in prosecution through the media. And so the blame game went on and still continues.

As the 2012 general election approaches, media consumers are likely to be treated to even more brickbats between opposing political camps, with far-reaching consequences. The law must crack down on the culprits and the media treat them with the contempt that they deserve. The mayhem that was witnessed in 2007-2008 must not be allowed to rear its ugly head again now that Kenya has entered the Second Republic and ushered in a new era with a mixture of optimism and sobriety.

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* Tom Olang’ is a teacher of English at Advent Hill School, Ongata Rongai, and postgraduate student in communication at Daystar University, Kenya.
* Please send comments to [email protected] or comment online at Pambazuka News