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KENYATTA UNIVERSITY
SCHOOL OF LAW
TOPIC OF DISSERTATION
RETHINKING THE LEGAL FRAMEWORK ON HATE SPEECH IN KENYA:
ADDRESSING INVESTIGATION AND PROSECUTION CHALLENGES
(10,192 words)
OKECHI DENNIS CHIRUBA
L95/1175/2011
A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT FOR THE DEGREE
OF BACHELOR OF LAWS [BACCALAREUS LEGUME (LLB)] OF KENYATTA
UNIVERSITY
MAY 2015
ii
DECLARATIONS
Candidate’s Declaration
This dissertation is my original work and has not been presented for the award of any degree or
for any other purposes to any institution other than Kenyatta University for Academic Credit.
OKECHI DENNIS CHIRUBA L95/1175/2011 ___________
Name of Student Reg. No Date
Supervisor’s Declaration
This work has been submitted with my approval as supervisor.
MS WAMBUI NJOGU ______________ _____________
Name of Supervisor Signature Date
Kenyatta University School of Law
iii
TABLE OF CONTENTS
DECLARATIONS ........................................................................................................................................ ii
LIST OF ABBREVIATIONS ...................................................................................................................... vi
LIST OF STATUTES AND LEGAL INSTRUMENTS ............................................................................ vii
International Instruments ........................................................................................................................ vii
National Laws and Statutes ..................................................................................................................... vii
Kenya .................................................................................................................................................. vii
Rwanda ............................................................................................................................................... vii
United States ....................................................................................................................................... vii
LIST OF CASES........................................................................................................................................ viii
Kenya ..................................................................................................................................................... viii
Rwanda .................................................................................................................................................. viii
United States .......................................................................................................................................... viii
ABSTRACT ................................................................................................................................................. ix
ACKNOWLEDGEMENT ............................................................................................................................ x
1 CHAPTER ONE: INTRODUCTION ................................................................................................... 1
1.1 Background ................................................................................................................................... 1
1.1 Statement of the Problem .............................................................................................................. 2
1.2 Research Questions ....................................................................................................................... 3
1.3 Study Objectives ........................................................................................................................... 3
1.4 Theoretical Framework ................................................................................................................. 4
1.5 Literature Review .......................................................................................................................... 5
1.6 Research Hypothesis ..................................................................................................................... 7
1.7 Research Methodology ................................................................................................................. 7
1.8 Scope of the Study ........................................................................................................................ 8
1.9 Limitation of the Study ................................................................................................................. 8
1.10 Justification for the Study ............................................................................................................. 8
2 CHAPTER TWO: THE CONCEPT OF HATE SPEECH IN KENYA................................................ 9
2.1 Introduction ................................................................................................................................... 9
2.2 What constitutes Hate Speech? ..................................................................................................... 9
2.3 Defining Hate speech .................................................................................................................... 9
2.4 Rationale for Restricting Hate Speech ........................................................................................ 11
2.4.1 The truth theory verses the harm principle ......................................................................... 11
iv
2.4.2 The Social Authority Principle ........................................................................................... 12
2.5 The History of Hate Speech Law ................................................................................................ 13
2.5.1 The United States ................................................................................................................ 13
2.5.2 The Nazi Germany .............................................................................................................. 14
2.5.3 The Kenyan Context ........................................................................................................... 14
2.6 The Status Quo of Hate Speech Prosecution in Kenya ............................................................... 15
3 CHAPTER THREE: LEGAL FRAMEWORK OUTLAWING HATE SPEECH IN KENYA ......... 18
3.1 Introduction ................................................................................................................................. 18
3.2 The Constitution of Kenya 2010 ................................................................................................. 18
3.3 Statutory Framework .................................................................................................................. 19
3.3.1 The Penal Code .................................................................................................................. 19
3.3.2 The Media Act 3 of 2007 .................................................................................................... 20
3.3.3 Kenya Information and Communications Act .................................................................... 21
3.3.4 Kenya Communications (Broadcasting) Regulations ......................................................... 21
3.3.5 The Elections Act ................................................................................................................ 22
3.3.6 The National Cohesion and Integration Act ........................................................................ 22
3.4 International Instruments ............................................................................................................ 24
3.4.1 Universal Declaration of Human Rights 1948 .................................................................... 24
3.4.2 International Covenant on Civil and Political Rights.......................................................... 24
4 CHAPTER FOUR: CHALLENGES FACING HATE SPEECH INVESTIGATIONS AND
PROSECUTIONS IN KENYA ................................................................................................................... 25
4.1 Introduction ................................................................................................................................. 25
4.2 Technological Advancement ....................................................................................................... 25
4.2.1 Admissibility of Online Evidence ....................................................................................... 25
4.2.2 Brand-jacking and Online Anonymity ................................................................................ 26
4.3 Blurriness in the Law: A Criminal or Civil Matter? ................................................................... 26
4.3.1 The Option of Conciliation ................................................................................................. 26
4.4 Ambiguous Laws: Striking the Balance between Hate Speech and Free Speech ....................... 27
4.4.1 Striking the Balance ............................................................................................................ 27
4.4.2 The Burden of Proof ........................................................................................................... 28
4.5 Lack of Precedents ...................................................................................................................... 29
4.5.1 Private Statements ............................................................................................................... 29
4.6 Financial constraints ................................................................................................................... 29
v
4.7 Approaches adopted by Rwanda and the United States in tackling hate speech ........................ 30
4.7.1 Introduction ......................................................................................................................... 30
4.7.2 Rwanda’s Approach: Vague and Overbroad ....................................................................... 30
4.7.3 United States of America: Too liberal? ............................................................................... 32
5 CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS.................................................. 35
5.1 Conclusion .................................................................................................................................. 35
5.2 Recommendations ....................................................................................................................... 36
6 BIBLIOGRAPHY ............................................................................................................................... 38
6.1 Books and Chapter Articles ........................................................................................................ 38
6.2 Reports and Papers ...................................................................................................................... 39
6.3 Journal Articles ........................................................................................................................... 40
6.4 Thesis and Research Papers ........................................................................................................ 40
6.5 Newspaper Articles ..................................................................................................................... 40
6.6 Internet Sources .......................................................................................................................... 41
vi
LIST OF ABBREVIATIONS
CERD International Convention on Elimination of All Forms of Racial Discrimination
DPP Director of Public Prosecutions
ECHR European Convention for the Protection of Human Rights and Fundamental
Freedoms
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
KNCHR Kenya National Commission on Human Rights
LSK Law Society of Kenya
UDHR Universal Declaration on Human Rights
vii
LIST OF STATUTES AND LEGAL INSTRUMENTS
International Instruments
1. International Convention on Elimination of All Forms of Racial Discrimination 1969
2. International Covenant on Civil and Political Rights 1966
3. European Convention for the Protection of Human Rights and Fundamental Freedoms
1950
4. Universal Declaration on Human Rights 1948
National Laws and Statutes
Kenya
1. The Constitution of Kenya 1963
2. The Constitution of Kenya 2010
3. The Elections Act 24 of 2011
4. The Kenya Communications Act 2 of 1998
5. The Media Act 3 of 2007
6. The National Cohesion and Integration Act 12 of 2008
7. The Penal Code Cap 63
Rwanda
1. LAW N°18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide
Ideology
2. LAW N°22/2009 oF 12/08/2009 on Media
United States
1. United States Constitution Amendment 1 of 1791.
viii
LIST OF CASES
Kenya
1. Chirau Ali Mwakwere v Robert Mabera and 4 others (2012) 6 (HC) Nairobi
2. Law Society of K v Moses Kuria (2014) Pending
3. Okiya Omtata Okoiti v Attorney General, The PS Ministry of Education and another (2013) 123
(HC) Nairobi
4. Republic v John Ng’ang’a alias De Mathew (2014) Unreported;
5. Republic v Kamanda wa Kioi (2014) Unreported.
6. Republic v Alan Wadi (2015) Unreported
7. Republic v Wilfred Machage and 3 others (2010) 1140 (CM) Nairobi
Rwanda
1. Prosecutor v Ferdinand Nahimana ICTR-1996-11
2. Prosecutor v Jean Bosco ICTR-1997-19.
3. Prosecutor v Simon Bikindi ICTR 2001-72-1;
4. Prosecutor v Kambanda ICTR 97-23-5
5. Prosecutor v Akayesu ICTR 96-4-T
6. Prosecutor v Serugendo ICTR-2005-84-1
United States
1. Brandenburg v Ohio U.S 394 (1969)
2. Chaplinsky v New Hampshire US (1942)
3. R.A.V v City of St. Paul 505 U.S 377 (1992)
4. Sapiro v Ford US (1927)
5. Schenck v. United States, 249 U.S. 47 (1919)
6. Snyder v Phelps 562 US 2011
7. Virginia v Black 485 U.S 1157 (1985)
ix
ABSTRACT
The Constitution of Kenya 2010 provides for the right to freedom of expression to every person.
This right is however conditional in that it does not extend to hate speech, incitement to violence
or advocacy of hatred on ethnic grounds. Various laws including the National Cohesion and
Integration Act have been legislated to outlaw hate speech.
The effects of hate speech cannot be underestimated. It causes harm to individuals. It degrades
them. It injures their dignity and sense of self-worth. It harms the society as a whole. It destroys
social harmony and encourages discrimination and violence. It creates a hostile environment for
the targeted members of that particular society. The 2007- 2008 Post-Election Violence in Kenya
and the 1994 Rwandan genocide are examples of such unfortunate effect.
Despite the existing laws, the identification of what constitutes hate speech is still problematic.
In this regard, hate speech investigations and prosecutions have faced tremendous challenges.
Since the inception of the National Cohesion and Integration Act in 2008, the office of the
Director of Public Prosecutions in Kenya has been able to prosecute only one offender. Several
other cases are either pending, withdrawn, dismissed or accused persons acquitted.
In order to identify where the challenge lies, this study has analysed the various laws outlawing
hate speech in Kenya. The analysis extended to cases of hate speech that have already been
determined by the courts. A further assessment of the approaches adopted by Rwanda and the
United States reveal varied ways in which hate speech can be handled.
The findings from the study reveal that the existing hate speech laws fall short of extensive
parameters within which hate speech operates. Without certain, strict and comprehensive law,
the courts are likely to make judgments on analogy which is against the principles of criminal
law.
The study further emphasizes the need for guidelines to guide the public, investigators,
prosecutors and the courts on what amounts to hate speech. In this regard, the research
recommends comprehensive guidelines on hate speech to be prepared and included in the
National Commission and Integration Act as a Fourth Schedule addendum. The study notes that
guidelines entrenched in a statute
Other challenges derailing hate speech investigations and prosecutions have also been discussed
and detailed recommendations given.
x
ACKNOWLEDGEMENT
With special thanks, I acknowledge my supervisor Madam Wambui Njogu for her devoted
guidance that was pivotal to the successful completion of this dissertation. I am indebted to her
for her patience, encouragement and constructive criticism from the beginning to the very end.
Her guidance and assistance has truly been invaluable.
I express my sincere gratitude to my family and friends for their financial and moral support that
has enabled me to reach this far. My appreciation to Kenyatta University School of Law staff
members and students who have been of good help throughout my four year study in law school.
God bless you all.
1
1 CHAPTER ONE: INTRODUCTION
1.1 Background
The 2007 - 2008 post-election violence in Kenya saw more than one thousand people dead and
thousands displaced.1 Hate speech spread through the media, especially the vernacular radio
stations, was said to be a key contributor to the rapid blowout and scale of violence.2 The fact
that the International Criminal Court (ICC) indicted a radio presenter as one of the most culpable
perpetrators of the violence was a clear warning that inflammatory speech should be highly
frowned upon.3
Several jurisdictions have defined the term hate speech.4 Nevertheless, there is no
universally accepted definition. In Kenya, hate speech is defined under section 13 of the National
Cohesion and Integration Act5 as the use of threatening, abusive or insulting words or
publication or display of any written material that is intended to stir up ethnic hatred or having
regard to all the circumstances, ethnic hatred is likely to be stirred up.6 Despite the above
definition, the identification of what constitutes hate speech is still problematic.7
The Bill of Rights in the Constitution of Kenya 2010 provides for freedom of
expression.8 It further provides that every person shall enjoy the rights and fundamental
freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or the
fundamental freedom9. It further requires the courts to adopt an interpretation that most favours
1 ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’ (August 2008)
7 Kenya National Commission on Human Rights. 2 (n1 above) 20.
3 S. Benesch ‘Song as a crime Against Humanity: The First International Prosecution of a Pop Star’ in H Carey & S
Mitchel (eds) Trials and Tribulations of International Prosecution (2013) 64 4 ‘Communication of animosity or disparagement of an individual or a group on account of characteristics such as
race, color, ethnicity, religion et al.’ JT Nocklebly, ‘Hate Speech’ in LW Levy & KL Karst (eds), Encyclopedia of
the American Constitution 2nd
ed (2000) 1277-1279 cited in MB Sica & J Beall, Library 2.0 and the Problem of
Hate Speech (2008) 5 Act No. 8 of 2008.
6Benesch (n3 above) 62
7 ‘Why Hate Speech Law Craves a Fresh Breath’ The Standard (Kenya, Nairobi) 28 June 2014 (Accessed 19
October 2014) at http://www.standardmedia.co.ke/Article/2000126312/why-hate-speech-law-craves-a-fresh-breath/;
M Odongo, Unpacking Hate Speech. http://www.cohesion.or.ke/news-all/144-unpacking-hate-speech-by-
commissioner-milly-odongo.html (Accessed 3 February 2015); M Chelanga, Hate Speech Legislation Does Not
Impede Free Speech (29 May 2013) http://ilawkenya.com/blawg/hate-speech-legislation-does-not-impede-free-
speech/ (Accessed 3 February 2015) 8 The Constitution of Kenya 2010 Art 33
9 The Constitution of Kenya 2010 Art 20(2).
2
the enforcement of a right or fundamental freedom.10
Therefore the elements of hate speech spelt
out in section 1311
and 6212
of the National Cohesion and Integration Act can only be established
through a wholesome analysis in a case-by-case study.
To this end, the office of the Director of Public Prosecutions in Kenya has only been able
to prosecute one offender13
for hate speech whom the court convicted on his own plea of guilty.
Several other cases are either pending, withdrawn,14
dismissed15
or accused persons acquitted.16
1.1 Statement of the Problem
The criminalization, investigation and prosecution of hate speech in Kenya have faced
tremendous challenges.17
Until recently, the term ‘hate speech’ has been a mere ambiguous
wording in the statutes18
whose legal consequence rarely knocks. The National Cohesion and
Integration Commission (NCIC) has admitted that it is facing challenges in prosecuting hate
speech charges due to inadequacy of the legal framework19
that fails to clearly spell out the
parameters within which hate speech operates and the clear distinction between free and limited
speech.20
Several high profile cases21
on hate speech have been dismissed and the accused
10
The Constitution of Kenya 2010 Art 20(3). 11
Sec 13 (1) provides that ‘a person who (a) uses threatening, abusive or insulting words or behavior, or displays
any written material; (b) publishes or distributes written material; (c) presents or directs the performance 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, abusive or insulting or involves the use of threatening, abusive or
insulting words or behavior 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. 12
Sec 62 (1) states that, ‘any person who utters words intended to incite feelings of contempt, hatred, hostility,
violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an
offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term
not exceeding five years, or both.’ 13
Republic v Allan Wadi (2015) (unreported) 14
Chirau Ali Mwakwere v Robert Mabera and 4 others (2012) 6 (HC) Nairobi (para 36) the case was later dropped
by the complainant who argued before court that the defendant had made a public apology. 15
Okiya Omtata Okoiti v Attorney General, The PS Ministry of Education and another (2013) 123 (HC) Nairobi. 16
Republic v Wilfred Machage and 3 others (2010) 1140 (CM) Nairobi; R v John Ng’ang’a alias De Mathew (2014)
Unreported; R v Kamanda wa Kioi (2014) Unreported. 17
National Cohesion and Integration Commission, Annual Report (2011-2012) 49; National Cohesion and
Integration Commission, Guidelines for Monitoring Hate Speech, August 2010, 8. 18
Penal Code Cap 63 Laws of Kenya Sec 77(1) provides that, ‘any person who does or attempts to do, or makes any
preparation to do, or conspires with any person to do any act with 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 seven years.’
Section 77 (3) defines subversion to include (b) incitement to violence and or other disorder or crime, or counseling
defiance of or disobedience to the law or lawful authority. 19
National Cohesion and Integration Commission, Guidelines for Monitoring Hate Speech (August 2010) 8; The
National Cohesion and Integration Act 12 of 2008 secs 13 & 62; 20
The Constitution of Kenya 2010 Art 33 guarantees the right to freedom of expression.
3
persons acquitted on the premise that the threshold for hate speech has not been met or that the
accused has the freedom of speech in making such utterances. This uncertainty which has been
left to the courts’ interpretation has made it almost impossible to convict accused persons for
hate speech.22
By the end of June 2014, NCIC had ten hate speech cases in court, two of which the
accused persons have been acquitted and the rest still pending in court. 23
In some other cases the
suspects have walked free due to what is termed as ‘lack of convincing evidence.24
This implores
the question. Why is it difficult to secure a conviction for hate speech in Kenya? Is there a lacuna
in the legal framework or are the laws ambiguous? Is the freedom of speech so amplified that it’s
hard to limit speech? Is the office of the Director of Public Prosecutions incompetent in
prosecuting hate speech matters? Whether the stalemate is on the above or otherwise is what this
study seeks to reveal.
1.2 Research Questions
This dissertation paper seeks to analyse and determine the following;
1) What is the history and concept of hate speech in Kenya?
2) What is the legal frame work regulating hate speech in Kenya?
3) What are the challenges facing hate speech investigations and prosecutions?
4) What are the approaches adopted by Rwanda and United States in regulating hate
speech?
5) What are the possible remedies to address these challenges in Kenya?
1.3 Study Objectives
This research is aimed at examining the legal framework to determine its effectiveness in
proscribing the use of hate speech in Kenya. It will further analyse pending and already decided
cases to reveal the stalemate in obtaining convictions. The study will further identify and discuss
21
R v Wilfred Machage and 3 Others (2010) 1140 (CM) Nairobi; Chirau Ali Mwakwere v Robert Mabera and 4
others (2012) 6 (HC) Nairobi; Okiya Omtata Okoiti v Attorney General, The PS Ministry of Education and another
(2013) 123 (HC) Nairobi. 22
Hon. Chirau Ali Mwakwere v Robert Mabera and Others (2012) 6 (HC) Nairobi. 23
Statement by Mwengi Kyalo, a senior legal officer at NCIC as quoted in the Daily Nation (28 June 2014) 10. 24
R v John Ng’ang’a alias De Mathew (2014) Unreported; R v Kamanda wa Kioi (2014) Unreported.
4
the existing and emerging challenges facing hate speech investigations and prosecutions in
Kenya and thus provide an elaborate conclusion and viable recommendations to avert the
stalemate.
1.4 Theoretical Framework
This study is premised on the theory of utilitarianism.25
This theory focuses on the
consequences of choosing one action against another. It requires one to traffic beyond the scope
of one’s own interests by considering the interests of others. John Stuart Mill26
argues that free
speech is for the benefit of all and it should be protected. He however avers that speech which
causes harm is against the interest of others and therefore it should be curtailed. According to
Mill’s harm Principle,27
any speech that manufactures a harmful action qualifies as hate speech.28
Simpson, a renowned writer of philosophy, enhances Mill’s principle by bringing in the
harm prevention theory as a rationale for restricting hate speech. He states that there is no
convincing rationale for legally restricting speech unless such speech is harmful to its targets and
not just defamatory or offensive.29
On the other hand, the capabilities theory30
advance that it is the role of lawgivers to
make available to all individuals adequate institutional, material and any other support required
to make it possible for each individual to operate peacefully and attain the capabilities. 31
In
fulfillment of these, the proponents advocate for free speech but on the same note, recognize that
the very same utterances in some contexts may undermine others’ ability to achieve their full
capacity. Post32
concurs with the capability theory proponents by stating that speech that harms
the democratic conditions that allowed it to exist in the first place should be banned. 33
25
A normative ethical theory developed by Jeremy Bentham and advanced by John StuArt Mill. 26
John StuArt Mill (1806 – 1873) was a British philosopher and political economist who was an influential
contributor to social theory, political theory and political economy. He is a proponent of utilitarianism and well
known for his concept of liberty that justifies the freedom of the individual in opposition to unlimited state control 27
JS Mill, On Liberty (1975) 14-15 28
J Rodriguez ‘Freedom of Expression from the Standpoint of JS Mill’s On Liberty.’ 15 29
R, Simpson ‘Dignity, Harm and Hate Speech.’ Law and Philosophy: An International Journal for Jurisprudence
and Legal Philosophy, (November 01, 2013) 32, 6, 701-28. 30
It is based on Aristotelian theory of ethics that centers human functional capabilities as necessary for the pursuit of
human prosperity. Advanced by various writers such as Sen and Nussbaum 31
M Nussbaum, ‘Nature, function and capability: Aristotle on political distribution’(1988) 145–184 Oxford Studies
in Ancient Philosophy M Nussbaum, ‘Aristotelian social democracy.’ in R. Douglass and G. Mara (eds.) Liberalism
and the Good (1990)203–252 New York 32
R Post, Constitutional Domains: Democracy, Community, Management (1995)463 Harvard University Press. 33
A Sen, Inequality Reexamined (1992)207 Harvard University Press,
5
The Conflict theory developed by Karl Marx34
and supported by other German scholars
such as George Simmel and Max Weber emphasizes the existence of opposing forces in the life
of individuals, groups, social structures and society in general.35
It views human society as a
collection of competing interests, each with own motives, values and expectations. According to
this theory, it is not expressions of hate that causes conflict but rather conflict which leads to
expressions of hate which may eventually cause harm.36
1.5 Literature Review
The Constitution of Kenya37
not only provides for the freedom of expression but also gives
limitations upon which such freedom can be exercised.38
The Acts of Parliament including but
not limited to the National Cohesion and Integration Act,39
the Kenya Communication
(Broadcasting) Regulations,40
the Penal Code,41
and the Election Act42
contain provisions that
either directly or indirectly proscribe hate speech. But how effective are these laws? Chapter
three of this study will analyse this provisions in detail.
The term hate speech has not yet acquired a universally accepted definition. Kanovitz43
defines hate speech as that speech that denigrates, belittles, or expresses contempt for others
because of their race, ethnic origin, color, religion, sexual orientation or other personal
characteristics that makes one vulnerable.44
Benesch45
on the other hand defines hate speech as
speech that has a reasonable chance of catalyzing or amplifying violence by one group against
another.46
34
Was a German philosopher (1818 - 1883), economist and sociologist. He is notable for his book ‘The Communist
Manifesto (1848). 35
D Homes, K Hughes & R Julian, Australian Sociology: A Changing Society (2007) 2nd
Ed. 36
J Bryant, ‘Two theories of Free Speech.’ http://www.thebirdman.org/Index/Lbl/Lbl-
TwoTheoriesOfFreeSpeech.html Retrieved 14 January 2015. 37
The Constitution of Kenya 2010 Art 33. 38
(As above)Art 33(2). 39
The National Cohesion & Integration Act 12 of 2008 Secs 13 & 62. 40
(As above) Sec 19(c) (d). 41
Cap 63 Laws of Kenya Secs 77(1)(3), 96 &138 42
Act 24 of 2011 2nd
Sch Electoral Code of Conduct Rule 6(a) 43
JR Kanovitz, Constitutional Law (2010) 64-65. 12th
ed 44
As above. 45
S Benesch, Dangerous Speech: A proposal to prevent group violence (Jan. 2012) 1-2.
(http://www.worldpolicy.org/sites/default/files/Dangerous%20Speech%20Guidelines%20Benesch%20January%202
012.pdf (Accessed 20 October 2014)
46 As above.
6
With regard to prohibition of hate speech, Kanovitz states that a society in which the
government is powerless to restrain citizens from speaking at any given time or place on any
subject would be an insufferable place to live.47
She however subscribes to the ‘truth theory’ in
the belief that the truth is most likely to emerge from unfettered exchange of ideas.48
She also
believes that the hallmark for the protection of free speech is to allow free expression of ideas. 49
Nevertheless, Kanovitz proceeds to give specific extremes where a total ban on hate
speech is required for the protection of the society. This includes where one uses fighting
words50
or uses threats51
that meet the Brandenburg test52
, as it will be discussed in detail in
chapter four of the study.
Barendt53
supports Kanovitz on the need for laws and mechanisms to ban hate speech in
order to protect members of the minority racial, ethnic and other groups from psychological
injury and damage to their self-esteem54
. He puts forward two major justifications why it is
necessary to prosecute hate speech.55
First, it is right for a society to indicate its distaste for hate
speech and discourage the spread of ethnic view.56
Secondly, racist or ethnic hate speech should
be prosecuted because it is highly wounding to the members of the targeted group by causing
psychological injury, fear of physical attack or low self-esteem.57
Barendt further emphasizes that states have a compelling interest to protect members of
these groups against the psychological injuries inflicted by the most spiteful forms of hate
speech.58
He further argues that legislation should be drafted carefully to ensure that only speech
47
JR Kanovitz, Constitutional Law 12th
ed (2010) 45; The state may give limitations upon which one can exercise
his or her freedom of expression without infringing the rights of another individual; Kovacs v Cooper 336 US (1949)
69 S. Ct 448 48
Virginia v Black S38 US, 123 S.Ct (2003). 49
Barry v Boos 485 US S.Ct 1157 (988) where it was stated that citizens must tolerate insulting and even outrageous
speech in order to provide adequate breathing space for freedoms protected by the First Amendment. 50
‘Words used purely to inflict injury’ as noted in Terminiello v Chicago 337 US S.Ct 894 (1949). 51
JR Kanovitz, Constitutional Law (2010)58; To constitute a true threat, the speaker must mean to communicate a
serious expression of intent to commit an act of unlawful violence against a pArty or a group of persons; Watts v
United States 394 US 89 S.Ct 458(1969). 52
JR Kanovitz, Constitutional Law (2010)61; Brandenburg v Ohio 395 US 895 S.Ct 1827 (1969). 53
E Barendt, Freedom of Speech (2009)171 Oxford University Press 54
As above 55
Barendet (above)173. 56
DA Strauss & Scanlon, ‘Persuasion , Autonomy and Freedom of Expression’ (1991) 91 Columbia Law Review 334 57
MJ Matsuda, ‘Public Response to Racist Speech: Considering the victims Story’ (1989) 87 Michigan Law Review
2320. 58
E Barendt, Freedom of Speech (2009)174 Oxford University Press
7
which is really wounding to the dignity of the targeted groups is proscribed by penal law. He
places responsibility on the courts to interpret the law and ensure that this boundary is not
crossed.59
The above was justified by Mill60
who stated that the only purpose for which speech
can be limited over a member of a democratic society against his will is to prevent harm to
others.61
Benesch62
citing the case of Rwanda analysed the nature of inflammatory speech as a
catalyst of grave international crimes including genocide.63
However, she cautions that
international speech must be defined carefully lest it be misused to curtail the freedom of
expression.64
Her words were gratified in the case of Akayesu65
where it was stated that the
speech must be direct, public and committed with specific intent to cause harm.66
The above and
other literature not mentioned shall form the basic resource for the study.
1.6 Research Hypothesis
The hypothesis of this study is that unless clear, extensive and elaborate laws on hate speech are
legislated and harmonious interpretation of these laws be made by courts to set clear precedents
on handling of hate speech matters, the challenge of hate speech investigations and prosecutions
will remain a tough knot to disentangle.
1.7 Research Methodology
The study is dependent on qualitative and quantitative library based research including online
resource utilization. The student makes reference to various law textbooks, thesis, essays, case-
laws, law related policy papers, internet sources, law journals and law reports on the relevant
areas. The study incorporates a wide base of resources to enable the student delve into a diverse
59
E Barendt, Freedom of Speech (2009)175 Oxford University Press 60
JS Mill, On Liberty (1975) 14-15 61
As above 62
S. Benesch, ‘Song as a Crime against Humanity: The First International Prosecution of a Pop Star’ in HF Carrey
& SM Mitchel (eds) Trials and Tribulations of International Prosecution (2013) 63. 63
Prosecutor v Simon Bikindi (2001) ICTR 72 1; Prosecutor v Kambanda (4 September 1998) ICTR 97/23/S;
Prosecutor v Ruggie (1 June 2000) ICTR 97/32/1; Prosecutor v Serugendo (12 June 2006) ICTR 2005/84/1. 64
This is discussed in chapter four of the study where hate speech regulation in Rwanda is seen as overboard. 65
Prosecutor v Akayesu ( 02 September 1998) ICTR 96/4/T. 66
S. Benesch, ‘Song as a Crime against Humanity: The First International Prosecution of a Pop Star’ in HF Carrey
& SM Mitchel (eds) Trials and Tribulations of International Prosecution (2013)67.
8
understanding and presentation of the concept of hate speech and hence answer the research
questions formulated above.
1.8 Scope of the Study
This study is limited to hate speech investigations and prosecutions in Kenya with specific focus
on the legal framework regulating hate speech. It further delves into the challenges facing
investigations and prosecutions of hate speech in social media and then shall proceed to make
recommendations on the way forward. For comparative analysis purposes, due regard shall be
given to approaches taken by Rwanda and the United States in hate speech regulation.
1.9 Limitation of the Study
The major limitation of this study is that most cases on hate speech though finalized have not
been reported. This therefore means that there will be high reliance on the limited media
information about the cases which is insufficient for proper analysis.
1.10 Justification for the Study
The stalemate in the effective prosecution of hate speech in Kenya has made the concept of hate
speech indeterminate. Utterances and posts made by politicians and bloggers though regarded as
harmful and offensive to the target group may not find its way to the courts for prosecution. If so,
an out of court settlement is quickly sought or the case dismissed all together leaving aggrieved
party desolate and the accused untamed. This may be attributed to the ambiguity of the legal
framework that gives leeway for such escapades therefore failing to appropriately clamp hate
speech.
This study is important because it unlocks the stalemate facing hate speech investigations
and prosecutions in Kenya. It will bring to limelight the challenges attributed to it and thus give
viable recommendations that will enhance proper and efficient investigation and prosecution of
hate speech.
9
2 CHAPTER TWO: THE CONCEPT OF HATE SPEECH IN KENYA
2.1 Introduction
This chapter shall set a comprehensive background of the concept of hate speech in Kenya. It
also discusses what constitutes hate speech as defined by various legal instruments. The rationale
and the justification for restricting hate speech shall also be discussed using the truth theory, the
harm principle and the social authority principle. The historical aspect of hate speech shall also
be highlighted chronologically up to the current status quo of hate speech in Kenya.
2.2 What constitutes Hate Speech?
The fundamental elements required to identify the offense of hate speech are necessary for one to
be convicted of the crime of hate speech. What are these elements? Each jurisdiction has set its
own parameters of what constitutes hate speech. This can be established from the legal
instruments that define the term hate speech as discussed below.
2.3 Defining Hate speech
There is no universally accepted definition of the term hate speech. This is due to the equivocal
nature of the term ‘hate’ whose components differ from society to society. In Kenya, hate speech
is defined in the National Cohesion and Integration Act67 as the use of threatening, abusive or
insulting words or behavior, or display of any written material, publication or distribution of such
written material or public performance of a play or distribution, showing or playing a recording
of visual images or producing a programme which involves the use of threatening, abusive or
insulting words or behavior.68
The Act further provides that the offense is committed if such person intends69
to stir up
ethnic hatred,70
or having regard to all the circumstances, ethnic hatred is likely to be stirred up.
67
Act 12 of 2008 Secs 13 (1) (2) & (3). 68
As above 69
By the use of the word ‘intend’, it is imperative that the drafters excluded hate speech as a crime of strict liability.
The intention of the speaker is put into consideration to determine whether he or she intended to stir up ethnic hatred
for the statement to amount to hate speech. 70
Act 12 of 2008 Sec 13 (3); “ethnic hatred” means hatred against a group of persons defined by reference to color,
race, nationality (including citizenship) or ethnic or national origins.
10
The above definition of hate speech has however been termed71
as vague in the sense that it is
too general and therefore hard for prosecutors to secure a conviction based on it.72
The Constitution of Kenya 2010 states that the right to freedom of expression does not
extend to hate speech.73
It however does not define what constitutes hate speech. Other statutes
such as the Penal Code74
, the Media Act75
, the Kenya Communications Act76
, and the Elections
Act77
contain provisions that regulate hate speech related offences. They shall be discussed in
detail in the next chapter.
Hate speech is not unique to Kenya. International instruments have also made provisions
regulating hate speech in various contexts. The International Convention on Elimination of All
Forms of Racial Discrimination (CERD)78
prohibits dissemination of ideas on racial superiority
or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such
acts against any race, group of persons of another color or ethnic origin. It further prohibits
organizations,79
public authorities and public institutions, national or local, against inciting racial
discrimination.80
Unlike the CERD, the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) is vague on the prohibition of hate speech. Article 10 is a
double edged sword that provides for freedom of expression in Subsection 1 while Subsection 2
gives an extensive list of claw backs under which freedom of expression is limited.81
There is no
express mention of the term hate speech. However, the prohibition in the interest of public safety
and protection of morals can well encompass hate speech where such utterances amount to the
above. Protection of political speech in ECHR is accorded high importance to enable citizens to
exercise their right to contribute meaningfully to the democratic political process. This was
71
‘Why Hate Speech Craves a Fresh Breath’ The Standard (Nairobi, Kenya) 28th
June 2014. 72
As above 73
Constitution of Kenya 2010 Art 33 (2) (c). 74
The Penal Code Cap 63 Sec 77. 75
The Media Act 3 of 2007 2nd
Sch Reg 25. 76
The Kenya Communications Act 2 of 1998 Sec 29 (a)(b). 77
The Elections Act 24 of 2011 r 6 (a). 78
CERD Art 4. 79
As above 4(b). 80
As above 4(c). 81
Subject to conditions or restrictions as are prescribed by law and are necessary in a democratic society, in the
interests of national security, public safety, prevention of disorder or crime and for the protection of health or morals
11
enunciated in the case of Republic v Shayler82
where it was stated that political opinion and
information must to be fully protected.
2.4 Rationale for Restricting Hate Speech
Freedom of speech is a fundamental right. This is accorded by international human rights
instruments83
and domestic legislations of various jurisdictions.84
What differs is to the extent to
which that freedom can be exercised. Freedom of opinion is very important in today’s political
democracy and development. However, unlimited free speech can pose danger to the public if
not monitored.
Freedom of speech is not unconditional. It is subject to certain qualifications that set a
ceiling beyond which the speech is criminalized.85
The post-election violence experienced in
2007/2008 in Kenya is a good example of how unlimited speech can cause grievous harm to the
public.86
The jurisprudential analysis of the rational for restricting harmful speech is as follows.
2.4.1 The truth theory verses the harm principle
Both the truth theory and the harm principle are associated with John Stuart Mill.87
Mill stated
that the origin of truth is best achieved through the ‘collision of competing ideas’.88
He
emphasized the paybacks of 'searching for and ascertaining the truth' as a way to further
knowledge. He claimed that even if an opinion is untrue, rebutting the mistake is the way to
better find the truth.89
In the interest of minority views, Mill argued in support of absolute freedom of political
speech, stating that it is a critical component for a representative government to be criticized and
82
[2002] UKHL 11; [2003] 83
UDHR Art 19; ICCPR Art 19. 84
In the United States of America, it is rooted in the 1st Amendment while in Kenya it is envisaged under Article 33
of the Constitution of Kenya. 85
M Oetheimer, ECtHR & Council of Europe, Freedom of expression in Europe: Case-law concerning Article 10 of
the European Convention of Human Rights (2007) Strasbourg. 86
KNHCR, On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence
(August 2008). 87
John Stuart Mill (1806 – 1873) was a British philosopher and political economist who was an influential
contributor to social theory, political theory and political economy. He is well known for his concept of liberty to
justify the freedom of the individual in opposition to unlimited state control; JS Mill, On Liberty (1869) Library of
Economics and Liberty http://www.econlib.org/library/Mill/mlLbty2.html (Accessed 23 February 2015) 88
JS Mill & R Bertin, Of the liberty of thought & discussion (2001). 89
JS Mill, On Liberty (1869) http://www.econlib.org/library/Mill/mlLbty2.html (Accessed 23 February 2015)
12
kept at check in order to empower debate over public policy.90
He asserted that freedom of
speech is vital for self-fulfillment and personal growth in line with the capabilities theory as
earlier discussed.
On the other hand, Mill also indicated that the only reason for which speech can be
limited against any member of a democratic society is to prevent harm to others.91
This is known
as the harm principle. He asserted that the only conduct of a person for which he is responsible to
society is that which concerns others. Any other part of his conduct especially that which
concerns himself alone, his independence is absolute de jure.92
Restricting speech that is true just because it is offensive is the dispute between the two
principles that has raised incessant debates93
on what ought to be categorized as hate speech or
not.94
Simpson enhances Mill’s principle by stating that there should be no convincing rationale
for legally restricting speech unless such speech is harmful to its targets and not just defamatory
or offensive.95
Herbert Spencer in his book Social statics (1851) stressed on the law of equal
liberty where he stated that every man has the right and freedom to do all that he wills provided
he infringes not the equal freedom of all others.96
These theories express the need to restrict
speech that is intended or likely to cause harm to others.
2.4.2 The Social Authority Principle
This principle complements the harm principle. The principle recognizes the liberty and
sovereignty of an individual not to be accountable to anyone for matters that concern interests of
no other person.97
It further asserts that for actions that are prejudicial to the interests of others,
90
FP Ellen, FD Miller & J Paul, Freedom of Speech (2004) Vol 21. 91
JS Mill, On Liberty (1859) 21-22; M David, ‘Freedom of Speech’, The Stanford Encyclopedia of Philosophy
(2012) http://plato.stanford.edu/archives/spr2015/entries/freedom-speech/ (Retrieved 22nd January 2015). 92
JS Mill (above) 22 93
J Waldron, The harm of hate speech (March 2012) http://www.eurozine.com/Articles/2012-04-24-waldron-
en.html. (Retrieved 04 January 2015); K Bruce-LockhArt, When does hate speech become dangerous speech?
Consider Kenya and Rwanda. (26th
April 2013) www.freespeechdebate.ox.ac.uk . (Retrieved 05 January 2015). 94
A Neier, The Future of Free Speech (11 January 2013)www.freespeechdebate.ox.ac.uk Retrieved 5th
January
2015. 95
RM Simpson, ‘Dignity, Harm, and Hate Speech’ Law and Philosophy: An International Journal for
Jurisprudence and Legal Philosophy, (01 November 2013) 32, 6, 701-728. 96
H Spencer, Social statics (1851) 4. 97
JS Mill, On Liberty (1869) http://www.econlib.org/library/Mill/mlLbty4.html (Accessed 23 February 2015).
13
the individual is accountable and may be subjected to social or legal punishments if the society is
of the opinion that the affected person requires protection.98
This principle is a tenet of the social contract theory advanced by Thomas Hobbes and
Rousseau which requires the society to waive their sovereignty and power to the ruling class who
govern them through the arms of government.99
Therefore, by the fact that hate speech is harmful
to certain members of the society, the social authority principle dictates that legal punishment is
necessary through the society’s established legal order and authority.
2.5 The History of Hate Speech Law
2.5.1 The United States
Before the term hate speech was conceptualized in Kenya, an early attempt to prosecute hate
speech had already been made in the United States in a 1927 law suit100
by a Jewish leader Aaron
Sapiro, against Henry Ford, an American industrialist and automobile manufacturer.101
Ford
published a personal newspaper102
whose content expressed and geared anti-Semitic campaign.
Sapiro, who was also defamed by the newspaper, filed a suit of libel against Ford demanding a
retraction of the allegations directed to him and a claim that Ford had libeled all Jews.
An argument was made that a group libel, now known as hate speech, was not actionable
under tort. Following the declaration of a mistrial, Ford issued a public apology to individuals
and Jews as a group and an out-of-court settlement was reached. Ford later succumbed to
pressure and closed the newspaper in the same year.103
This novel case known as Sapiro v
Ford104
marked a lost opportunity for the American legal system to define hate speech which has
since been problematic.
98
J Monahan & L Walker, ‘Social Authority: Obtaining, Evaluating and Establishing Social Science in Law’
(1986)134 University of Pennsylvania Law Review 499-516; G Cassey, ‘One very simple principle’ (2009)
https://philosophynow.org/issues/76/One_very_simple_principle (Accessed 23 February 2015). 99
J Rousseau & G Cole, The social contract: And discourses (1950) New York. 100
Sapiro v Ford (1927) US Fed Crt. 101
SW Victoria, ‘Suing Henry Ford: America's First Hate Speech Case’. American Bar Foundation.
http://www.americanbarfoundation.org/research/project/19 (Accessed 20 February 2015). 102
The Dearborn Independent, also known as The Ford International Weekly established in 1901 to 1927. 103
‘The Sapiro Trial and Ford's Apology’. http://archive.adl.org/special_reports/ij/sapiro_trial.html (Accessed 20
February 2014) 104
Sapiro v Ford (1927) US Fed Crt
14
2.5.2 The Nazi Germany
The hate publications by Henry Ford were later consolidated into a book known as The
International Jew105
which found its way as a contrivance of incitement in the persecution of
Jews by the Nazi Germans. At the Nuremberg Trials in 1945, Baldur von Schirach106
testified to
the International Military Tribunal that the book made a huge influence on him and his
colleagues in their youth and influenced them in becoming antisemitic.107
Adolf Hitler's office
was also said to have contained a large picture of Ford and a well-thumbed copy of the
International Jew in his library.108
Julius Streitcher, a prominent Nazi who was the founder and publisher of Der Sturmer109
newspaper was convicted of crimes against humanity and executed for his role in spreading
propaganda that greatly contributed to the annihilation of the Jews.110
The disastrous
consequence of hate speech on the Jews especially during the holocaust cannot be denied nor
belittled. The above is akin to the political history of ethnic violence in Kenya.
2.5.3 The Kenyan Context
Kenyan politicians have routinely used hate language to set communities at each other’s throats.
In 1992, the multiparty politics were cuddled with hate speech on political and ethnic lines.
There was a threat to lives of those seen flashing the two finger salute, a sign of support to
multiparty system.111
Some communities such as the kikuyu were told to ‘lie low like envelopes
to avoid destruction.’112
The 1997, 2002 and 2005 politics were no better. Campaigns were riddled with hate
messages directed to members of certain tribes who were believed to be political opponents. For
105
‘The International Jew: The World's Foremost Problem.’ The Dearborn Independent.
https://archive.org/details/TheInternationalJewTheWorldsForemostProblemhenryFord1920s. (Accessed 20 February
2015) 106
One of the criminals charged and found guilty for crimes against humanity by the IMT 1945/46. 107
Nuremberg Trial Proceedings (1946) http://avalon.law.yale.edu/imt/05-23-46.asp (Accessed 20 February 2015) 108
T Ryback, Hitler's Private Library (2008) as quoted by New York Sunday. (24 September 2008).
http://www.nysun.com/Arts/timothy-rybacks-hitlers-private-library/86436/ (Retrieved 20 February 2015). 109
An antisemitic weekly publication during the Nazi regime. 110
The Avalon Project: Judgment against Streicher. International Military Tribunal for Germany. Yale Law School.
http://avalon.law.yale.edu/imt/judstrei.asp (Accessed 20 March 2015) 111
Maina Kiai, ‘Speech, Power and Violence: Hate Speech and the Political Crisis in Kenya’. 112
As above.
15
example Simeon Nyachae was recorded stating that ‘all Luo people should be circumcised.’113
To Kibaki supporters, this meant a horrific political violence against the Luo.114
Kenya met its worst experience during the 2007-2008 post-election violence which saw
more than one thousand people slain and thousands displaced.115
Hate speech through the social
media and the vernacular radio stations, was said to be a major contributor to the rapid spread
and scale of violence.116
Joshua Arap Sang, a radio presenter in one of the Kalenjin vernacular
radio stations has been indicted by the International Criminal Court for hate speech
charges.117
The history of impunity and the structure of hate speech democratization where
control and comfort is accorded to perpetrators after the fact without any form of accountability
has been said to be the reason for the continued hate speech culture especially among
politicians.118
2.6 The Status Quo of Hate Speech Prosecution in Kenya
The National Cohesion and Integration Commission was established in 2008 following the 2007-
2008 post-election crisis to foster reconciliation and cohesion among communities. One of its
functions is to promote elimination of all forms of discrimination on ethnic grounds.119
Among
the salient provisions in its constitutive Act120
is Sections 13 and 62 which forbid the use of hate
speech and discrimination of any person on the basis of ethnicity.
However, the objective of criminalizing and prosecuting hate speech in Kenya is facing
tremendous challenges in its implementation process.121
The NCIC has admitted that it is facing
challenges in dealing with hate speech.122
Several high profile cases123
on hate speech have been
113
Kenya National Commission on Human Rights, ‘Referendum Report’ (2005).
http://www.knchr.org/dmdocuments/referendum.pdf (Accessed 26 February 2015). 114
As above 115
KNHCR, ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’
(August 2008). 116
KNHCR, ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’
(August 2008). 117
Prosecutor v William Samoi Ruto & Joshua Arap Sang ICC-01/09-01/11. 118
Maina Kiai, ‘Speech, Power and Violence: Hate Speech and the Political Crisis in Kenya’. 119
National Cohesion and Integration Act 12 of 2008 sec 25. 120
As above. 121
NCIC, ‘Annual Report’ (2011-2012)49; NCIC, Guidelines for Monitoring Hate Speech (August 2010)8. 122
NCIC, ‘Guidelines for Monitoring Hate Speech’ (August 2010)8; The National Cohesion and Integration Act 12
of 2008 Secs 13 & 62.
16
dismissed or the accused persons acquitted on the premise that the evidence submitted to the
court was insufficient. Has the bar on hate speech been raised? This uncertainty on the scope and
content of hate speech has made it difficult to prosecute accused persons for hate speech.124
The case of Republic v John Ng’ang’a alias De Mathew, Kamanda wa Kioi and Muigai
Wa Njoroge125
enunciates this impasse. The three defendants are musicians who were accused of
producing songs that spread hate speech against the former Prime Minister Raila Odinga and his
community.126
Parts of the translated songs that were termed as insulting and spreading hate are;
“What if you knew that you are being pushed to The Hague by an uncircumcised man who wants to take
over your wife and all your wealth? There it is better to die. I would kill him.”127
“You are like a greedy hyena seeing a man walk and following him hoping that his arm will drop off. You
follow him till he boards the train and the arm does not drop and you eat nothing.”128
“You thump your chest about The Hague, is Hague your mother’s? There is a curse from God. Philistines
who do not circumcise cannot lead Israel.”129
The NCIC termed the above songs as ‘insulting and amounting to hate speech.’ It recommended
the songs be banned from being aired on local radio stations. The cases against the latter two
were dropped after a deal was struck with NCIC save for De Mathew whom it recommended that
he be charged and jailed for a term not exceeding three years or pay a fine of one million
shillings or both. Shockingly, the court declared that the prosecution did not present ‘enough
evidence' to link the singer to the alleged hate speech and therefore dropped all charges.130
The above decision was as setback to the NCIC which had classified the songs as hate
speech within the definition of section 13 of the National Cohesion and Integration Act. Since
then, several other cases have been presented to court but are still sub judis.
123
R v Wilfred Machage and 3 Others (2010) 1140 (CM) Nairobi; Chirau Ali Mwakwere v Robert Mabera and 4
others (2012) 6 (HC) Nairobi; Okiya Omtata Okoiti v Attorney General, The PS Ministry of Education and another
(2013) 123 (HC) Nairobi. 124
Hon. Chirau Ali Mwakwere v Robert Mabera and Others (2012)6 (Unreported). 125
(2014) Unreported 126
http://www.standardmedia.co.ke/ktn/video/watch/2000070781/musician-john-de-mathew-faces-hate-charges
(Accessed 24 February 2015) 127
‘Unnecessary Noise: Translation’ Moderate Kenyan (June 2012) Song by Muigai wa Njoroge.
https://moderatekenyan.wordpress.com/2012/06/23/unnecessary-noise/ (Accessed 20 March 2015) 128
(As above) Song by De Mathew titled ‘The Year of the Hyena’. 129
(As above) Song by Kamanda wa Kioi titled ‘Uhuru is Ours.’ 130
Court Acquits Musician De Mathew over Anti Raila Song, Daily Nation (June 2014).
17
However, in January 2015, one person was convicted of hate speech and jailed for two
years on his own plea of guilty.131
Allan Wadi Okengo alias Liutenant Wadi was accused of
posting unprintable insults against President Uhuru Kenyatta on his Facebook account.132
He was
sentenced after he pleaded guilty to two charges of hate speech133
and demeaning the lawful
authority of a public officer, contrary to section 132 of the Penal Code.134
Being the first case in which an accused person has been convicted of hate speech, it may
look like progress has been made on hate speech prosecutions. On the contrary, this might not be
the case because the prosecution is unique from the rest. Here defendant pleaded guilty while in
the former cases, the defendants had pled not guilty thus invoking the trial process. What if he
pled not guilty! Would the prosecution have followed the usual rhetoric of acquittal? What is this
uncertainty in the law that most defendants end up being acquitted?
The next chapter shall examine the Kenyan legal framework to establish whether it is
sufficient in proscribing hate speech.
131
Republic v Allan Wadi (2014) Unreported; University student jailed for insulting President Uhuru Kenyatta.
Daily Nation (Kenya, Nairobi) 02 January
2015
132 As above.
133 The first indictment being that he posted a hate speech message intended to stir up ethnic hatred between various
Kenyan communities and the second being alleging a pArticular tribe should be deported to their home county. 134
University student jailed for insulting President Uhuru Kenyatta, Daily Nation (Kenya, Nairobi) 02 January
2015
18
3 CHAPTER THREE: LEGAL FRAMEWORK OUTLAWING HATE
SPEECH IN KENYA
3.1 Introduction
Before the inception of the National Cohesion and Integration Act,135
there was no express
mention of the term ‘hate speech’ in any of the existing criminal laws. However, the Penal Code
prohibited acts intended to stir hatred or promote discrimination or enmity between different
races or communities in Kenya.136
The Constitution of Kenya 1963 repealed in August 2010 had no provision against hate
speech. Article 82137
was the closest provision to outlawing hate speech. It prohibited
discrimination on grounds of race, tribe, nationality, political opinion, colour or sex.
Discrimination in this context referred to affording different treatment to different persons on the
grounds listed above. From the above, it is apparent that neither was there an express provision
curbing hate speech nor a duty on the state to suppress it.
A report by Kenya National Commission on Human Rights (KNCHR)138
and the Waki
Commission139
indicated that the 2007 - 2008 post-election violence was fueled by hate speech.
The aftermath saw legislation of new laws expressly outlawing hate speech. This chapter shall
analyse the Kenyan laws outlawing hate speech and further probe their effectiveness in doing so.
3.2 The Constitution of Kenya 2010
The Constitution of Kenya 2010 has adequately embraced the aspect of human rights and
fundamental freedoms in the Bill of Rights.140
Article 27 provides for equality of every person
before the law, including the right to equal protection and equal benefit of the law.141
The Article
further states that equality includes the full and equal enjoyment of all rights and fundamental
135
Act 12 of 2008. 136
The Penal Code Cap 63 Laws of Kenya Sec 77. 137
The Constitution of Kenya 1963 Art 82 138
KNCHR, ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’
(August 2008)7. 139
Report by the Commission of Inquiry on Post-Election Violence - CIPEV (Waki Report) (2008) 68-71. 140
The Constitution of Kenya 2010 Chap. 4; Article 19 on rights and fundamental freedoms. 141
The Constitution of Kenya 2010 Art 27 (1)
19
freedoms.142
These Articles set the principle of equality whereby an exercise of one’s right
should not infringe or interfere with another person’s ability to enjoy his right. 143
The equality
principle goes hand in hand with the principle of non-discrimination enshrined in Article 27(5)
which expressly prohibits discrimination on grounds of race, ethnicity or social origin.
Article 33 (1) is the main provision that expressly prohibits hate speech. It provides for
freedom of expression which includes freedom to seek, receive and impart information,144
freedom of artistic creativity145
and freedom of academic and scientific research.146
Nevertheless,
the freedom of expression is not absolute, clause two limits this freedom to acts such as
propaganda for war, incitement to violence, hate speech147
or advocacy of hatred that constitutes
ethnic incitement, vilification of other people or incitement to cause harm based on any ground
of discrimination.148
One major setback in the constitution is that it does not provide for the definition of the
term hate speech. This therefore means that the constitution cannot on its own be sufficient
enough to establish a cause for hate speech. It merely sets a basic norm upon which statutory
legislations obtain legality of outlawing hate speech. The comprehensive details of the scope and
content of hate speech are thus expected to be delineated in statutory framework.
3.3 Statutory Framework
3.3.1 The Penal Code 149
This is an Act of Parliament that establishes a code of criminal law. The Act does not expressly
outlaw hate speech, but prohibits any act or conspiracy to do an act or utter any words with a
subversive intention.150
Subversive intention is defined inter alia, as acts intended or calculated
to promote feelings of hatred or enmity between different races or communities in
142
The Constitution of Kenya 2010 Art 27 (2). 143
In conformity with Mill’s proposition of the harm principle; JS Mill, On Liberty (1859) 21-22; Freedom of
Speech" (17 April 2008) Stanford Encyclopedia of Philosophy. (Retrieved 22 January 2015). 144
The Constitution of Kenya 2010 Art 33(1)(a). 145
(As above) Art 33(1)(b). 146
(As above) Art 33(1)(c). 147
(As above) Art 33(2)(c). 148
Any ground of discrimination that is specified in clause 4 of the same Article. 149
Cap 63 Laws of Kenya. 150
Penal Code Sec 77(1).
20
Kenya.151
Commission of the above acts is an offence that attracts imprisonment for a term not
exceeding seven years.152
Section 96 criminalizes any act, utterance, print or publication that is
calculated to bring death, physical injury or threatens the peaceful existence of any person, class
of people or community. Such an offence is punishable by a jail term of not more than five years.
However, the statute fails to address the point at which a statement be said to promote
feelings of hatred or enmity between different races. Feelings are subjective. Each person
responds in a different way depending on the personality and the society one lives or is brought
up. Must these feelings be common to every member of the community or just an individual or a
section of the group is sufficient? What content and to what degree or extent can a statement be
said to promote feelings of hatred and enmity? Should it be a court of public opinion since it is
the public that is a litmus test? In the case of John Ng’ang’a alias De Mathew, the court however
ruled contrary to the expectations of the public and the NCIC.153
3.3.2 The Media Act 3 of 2007
The Waki report154
revealed that the media played a big role in fueling hate speech before,
during and after the 2007 elections. The vernacular media platforms were the most culpable.155
The term media is defined under Section 2 of the Media Act as both electronic and print media
engaged in any production for circulation to the public, but does not include book publishing.
According to the Second Schedule of the Media Act, Regulation 25 of the Code of
Conduct for the Practice of Journalism in Kenya, quoting or giving air time to persons making
derogatory remarks based on ethnicity, race, creed, colour and sex is prohibited. It further seeks
the media to avoid the use of racist or negative ethnic terms. The media is expected to promote
peace and cohesion as they disseminate information and thus avoid being agents of ethnic
divisions and conflicts.
151
Penal Code sec 77 (3) (e): However, any criticisms and comments made in good faith or intended to remove any
causes of hatred between communities are excluded from the application of the section. 152
Penal Code Sec 77 (1). 153
Court Acquits Musician De Mathew over Anti Raila Song’ Daily Nation (Kenya, Nairobi) 20 June 2014 154
Report by the Commission of Inquiry on Post-Election Violence - CIPEV (Waki Report) (2008) 68-71. 155
KNCHR, ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’
(August 2008).
21
The challenge with the above requirement is that it is dependent on the knowledge of the
media personnel on what constitutes derogatory remarks. Are political remarks hailing a certain
ethnic or religious group derogatory to other groups? For example, in the wake of terrorist
attacks in Kenya, can a statement blaming a certain community or religious group be said to be
derogatory? These will depend on the content and context in which such statement was made.156
Therefore does airing or reporting such statements amount to an offence? The above requirement
should also be balanced with the freedom of the media157
and the right of information158
as
provided by the Constitution of Kenya.
3.3.3 Kenya Information and Communications Act159
This is an act of parliament that seeks to regulate the communication sector. It establishes the
Communications Authority160
whose mandate is to license and regulate the communication
sector.161
Sections 29 (a) and (b) of the Act makes it an offence to improperly use a licensed
telecommunication system to send messages that are grossly offensive or of an indecent, obscene
or menacing character for purpose of causing annoyance to another person.162
It should be noted that the above section does not refer to a group or class of people on
the ground of race or ethnicity upon whom the messages may target. Lack of precision in this
provision makes it improper to classify an act within the section as hate speech.
3.3.4 Kenya Communications (Broadcasting) Regulations
This is an annex to the Kenya Information and Communication Act that sets guidelines and code
of conduct for the broadcasters. Sections 15 (c) and (d) of the regulations outlaws broadcasting
of any matter that glorifies violence or depicts violence in a manner that is likely to incite or
perpetuate hatred or vilify any person or section of the community on account of race, ethnicity,
nationality, gender, sexual preference, age, disability, religion or culture of that person or section
156
‘Court Bars Moses Kuria from Making Remarks Over the Mandera Terror Attack’ Daily Nation (Kenya, Nairobi)
26 November 2014 157
The Constitution of Kenya 2010 Art 34. 158
(As above) Art 35. 159
Cap 411A Laws of Kenya Rev 2011. 160
Kenya Information and Communications Act Sec 3. 161
(As above) Sec 5. 162
This offence attracts a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding
three months, or both
22
of the community. Even though the provision does not expressly mention hate speech, the
outlawed broadcasts perfectly fits the definition of hate speech.163
3.3.5 The Elections Act164
The Election Act of 2011 came into force in December 2011 to regulate the process and conduct
of elections. Section 67165
prohibits any person from conducting political campaigns using
language which is threatening, abusive or insulting or engaging in any kind of action which may
advocate hatred, incite violence or influence the voters on grounds of ethnicity, race, religion,
gender or any other ground of discrimination.166
The second schedule of the Act provides for the electoral code of conduct that is to be
subscribed by every political party, candidate, leader, agent or any person participating in an
election.167
Rule 6(a) requires all participants of an election to publicly and repeatedly condemn
violence and intimidation and avoid the use of hate speech or any kind of action which may lead
to violence or intimidation.
The Act empowers the commission to impose penalties or sanctions.168
The Act also
empowers the commission in instances where there is gross misconduct, to liaise with the High
Court to prosecute an individual or a political party. 169
As far as the conduct of elections is
concerned, the Act if sufficient in prohibiting hate speech related acts.
3.3.6 The National Cohesion and Integration Act170
This Act was enacted in 2008 to encourage national cohesion and integration by outlawing
discrimination on ethnic grounds.171
It expressly criminalizes hate speech in Kenya under
163
Act 12 of 2008 Sec 13 & sec 62; Kenya Communications (Broadcasting) regulations sec 40 Contravention of the
regulations constitutes an offense where one shall be liable to a fine not exceeding one million shillings or to
imprisonment for a term not exceeding three years or both 164
Act 24 of 2011. 165
Election Act 24 of 2011 Sec 67(1)(g)(i). 166
(As above) Commission of the above offence attracts a fine not exceeding five hundred thousand shillings or to
imprisonment for a term not exceeding five years or both 167
Elections Act 24 of 2011 Rule 1. 168
Elections Act Rule 7 for example formal warning, a fine, an order partly or absolutely barring utility of any
media, an order prohibiting holding of particular meeting or entering any specified electorate area inter alia against
any political party or any candidate for breach of the code. 169
Elections Act 24 of 2011 rule 7 (b) (iii), 8, 9, 10, 11 & 12. 170
Act 12 of 2008. 171
National Cohesion & Integration Act 12 of 2008 Preamble.
23
Sections 13 and 62. Section 13(1) of the Act makes it an offense to commit certain acts with
intention to stir up ethnic hatred or in due regard to the circumstances, ethnic hatred is likely to
be stirred up. These acts include, use of threatening, abusive or insulting words, displaying,
publishing or distributing of any written material, presenting or directing public performance of a
play, distributing, showing or playing a recording of visual images which are threatening,
abusive or insulting.
For the purpose of determining whether an act of ethnic hatred has amounted to hate
speech, the section defines the term ethnic hatred as hatred against a group of persons
identifiable by race, colour, nationality or ethnic origins.172
The penalty for commission of the
offence is a fine not exceeding one million shillings or imprisonment for a term not exceeding
three years or both.173
The Act further outlaws the offence of ethnic or racial contempt. Section 62(1) makes it
unlawful to utter words intended to incite feelings of contempt, hatred, hostility, violence or
discrimination against any person, group or community on the basis of ethnicity or race.
Publication of material or utterances that are likely to promote ethnic hatred by media enterprises
is prohibited in both Section 13 and 62(2) of the Act.
Despite the Act being more elaborated than the others, it has faced criticisms for failing
to define parameters within which hate speech operates especially in the media.174
In an
endeavor to address this challenge, the NCIC prepared guidelines to enable identification of
speech that may qualify as hate speech. However, the challenge is that though these guidelines
are helpful, they are not binding to the courts. Unless they are incorporated in Statute, they will
remain mere academic guidelines that are just persuasive.
172
National Cohesion & Integration Act Sec 13 (3) 173
(As above) Sec 13 (2) 174
Why Hate Speech Law Craves a Fresh Breath’ The Standard (Kenya, Nairobi) 28 June 2014 Accessed 19th
October 2014 at http://www.standardmedia.co.ke/Article/2000126312/why-hate-speech-law-craves-a-fresh-breath/;
M Odongo, Unpacking Hate Speech. Accessed on 3 February 2015 at http://www.cohesion.or.ke/news-all/144-
unpacking-hate-speech-by-commissioner-milly-odongo.html
24
3.4 International Instruments
3.4.1 Universal Declaration of Human Rights 1948
This is a human rights declaration which was adopted in Paris, 1948 by the United Nations
General Assembly following human rights violations in Second World War. It provides for basic
human rights which include freedom of opinion and expression,175
the right to equality,176
freedom from discrimination177
and the right to freedom of thought, conscience and religion.178
Article 19 provides that every person has the right to hold opinions without interference
and this includes the right to seek, receive and impart information and ideas through media
regardless of limits. Article 29 provides for limitations to these rights as may be determined by
domestic law for the purpose of securing due recognition and respect for the rights of others and
of meeting the just requirements of morality, public order and general welfare of the society.
179Since hate speech is against the good order, morality and general welfare of the society, its
restriction is therefore justified under the UDHR.
3.4.2 International Covenant on Civil and Political Rights
This is a multilateral treaty that was adopted by United Nations General Assembly in 1966 to
commit its parties to respect civil and political rights of its nationals. Kenya ratified the ICCPR
in 1972 and thus its application in Kenya is by virtue of Article 2(6) of the Constitution.
Just like the UDHR, the ICCPR provides for the right to hold opinions and freedom of
expression.180
Clause 3 further provides that these rights carry with them duties and obligations
and therefore subject to certain restrictions which have to be provided by law.181
In regard to hate
speech, Article 20 prohibits any propaganda for war, advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence.
The next chapter shall discuss the challenges facing prosecution of hate speech in Kenya.
175
Universal Declaration of Human Rights Art 19. 176
(As above) Art 1. 177
(As above) Art 7. 178
(As above) Art 18. 179
(As above) Art 29(2). 180
International Covenant on Civil &Political Rights Art 19 (1). 181
ICCPR Art 19 (3); serve to protect the rights or reputations of others, national security or public order, or public
health or morals, and be necessary in a democratic society to protect these interests.
25
4 CHAPTER FOUR: CHALLENGES FACING HATE SPEECH
INVESTIGATIONS AND PROSECUTIONS IN KENYA
4.1 Introduction
Hate speech investigations and prosecutions have faced tremendous challenges in Kenya. These
challenges are diverse and stem from the changing nature of hate speech. This chapter shall
discuss the salient challenges facing hate speech investigations and prosecutions in Kenya and
further make an analysis of the approaches adopted by Rwanda and the United States in
regulating hate speech in their respective jurisdictions.
4.2 Technological Advancement
The media sector has made cognizable steps in clamping down hate speech in the mainstream
media.182
However, in the recent times, harmful speech has shifted from conventional media to
the cyberspace.183
According to the sector statistics report184
by the Communications Authority,
the number of internet users rose from three million in 2007 to twenty two million in 2014. This
therefore denotes that more Kenyans are now using social media as a communication tool and
hence a higher likelihood of dangerous speech being spread online.
4.2.1 Admissibility of Online Evidence
The current legal regime is silent on admissibility of online content.185
It only recognizes
conventional media such as newspapers, radio stations and related media enterprises.186
However, according to the Black’s Law dictionary, the word ‘publication’ includes the display of
information which in this case includes posting content online. Though not expressly provided,
individuals found posting hate speech online can therefore be prosecuted by the same hate
182
The Media Act 3 of 2007 and the Kenya Communications Regulations have well regulated transmission of
information and sanctioned dissemination of information that is likely to stir up ethnic hatred. In addition, section
62(2) of the National Cohesion and Integration Act made it unlawful for any newspaper, radio station or media
enterprises to publish utterances likely to promote hatred. 183
According to Umati, ninety percent of dangerous speech was captured on Facebook making it the highest source
of such content; Umati, Monitoring Online Dangerous Speech in Kenya (Jan-Dec 2013) 184
Communications Authority, ‘Sector Statistics Report’ (Jul-Sep 2014/2015); Communications Authority, ‘Sector
Statistics Report’ (2007). 185
C Moses, ‘Challenges of prosecuting hate speech offences.’ ILAW Kenya. (May 2013) (Retrieved on 20 March
2015) http://ilawkenya.com/blawg/challenges-of-prosecuting-hate-speech-offences/ 186
National Cohesion and Integration Act Sec 62 (2).
26
speech provisions. 187
Gatundu South MP, Moses Kuria, is currently facing hate speech charges
in a case filed by the Law Society of Kenya regarding comments he made on his Facebook page
on May 26th
2014 that were said to be promoting ethnical hatred.188
4.2.2 Brand-jacking and Online Anonymity
The problem of online anonymity and brand jacking has remained a big challenge. The
authorities have the option of requesting the anonymous account holder or the service provider to
pull down the post or comment. For example an imposter used the name of Tony la Russa,
Manager for St. Louis Cardinal Baseball team in United States to create a twitter account and
posted derogatory and demeaning updates.189
The real Tony La Russa sued twitter seeking
removal of the account and identity of the fake account holder. But this is not always assured.
For example, if the service provider is not within Kenya, the courts will not be able to enforce
such orders.190
The recent case of Republic v Alan Wadi191
where the defendant was sentenced to two
years for posts he made on his Facebook account. It would have been a very difficult exercise to
apprehend him if he was operating an anonymous account or taken the identity of another
person. Lack of necessary equipment and skills to track down anonymous posts on social media
has made it a challenge for the authorities to apprehend and prosecute offenders.
4.3 Blurriness in the Law: A Criminal or Civil Matter?
4.3.1 The Option of Conciliation
Despite Sections 13 and 62 of the Act192
proscribing hate speech as a crime, Section 49 to 53
makes it possible for the Commission to refer matters for conciliation.193
In the case of Chirau
187
Republic v Alan Wadi (2015) Unreported. 188
Gatundu South Mp Moses Kuria to Appear in Court over Hate Speech charges’ Standard Digital (Kenya,
Nairobi) 15 January 2015 http://www.standardmedia.co.ke/?ArticleID=2000147945&story_title=moses-kuria-to-
appear-in-court-over-hate-speech 189
La Russa sues Twitter over fake page, ESPN (June 2009). Retrieved March 25 2015
http://sports.espn.go.com/mlb/news/story?id=4230602 190
As above. 191
Republic v Alan Wadi (2015) (unreported) 192
National Cohesion and integration Act 12 of 2008 193
The National Cohesion and Integration Act sec 49-53.
27
Ali Mwakwere v Robert Mabera and Others,194
the defendant made a public statement depicting
that indigenous people of the Coastal Region were being oppressed by the Arabs. This was
indeed hate speech as it was intended to cause animosity between the Arabs and indigenous
people. The case was however withdrawn by the applicant after conciliation with the
defendant.195
Without prejudice to the functions of the Commission,196
I opine that the option of
conciliation to culprits of hate speech does not effectively deter future commission of the offence
just as a punitive sentence would do. Individuals deliberately make dangerous speech with the
intention of seeking conciliation or making an apology after the fact.
Where hate speech utterances are intentional, conciliation does not deter the person from
future commission of the same offense. In the case of Law Society of Kenya v Moses Kuria197
,
barely hours after the defendant had made a public apology, he again made an unapologetic and
offensive comment against the community.198
From this case, it is evident that treating the
offence of hate speech as a civil matter does not efficiently deter commission of the offence.
4.4 Ambiguous Laws: Striking the Balance between Hate Speech and Free Speech
The constitution of Kenya provides for the right to freedom of expression.199
However, this right
does not extend to hate speech, ethnic incitement or advocacy of hatred.200
The point at which
freedom of speech crosses the line to constitute hate speech is contentious.201
4.4.1 Striking the Balance
According to Mill’s truth theory, freedom of speech is vital in criticizing and ascertaining the
truth of a matter.202
Therefore the freedom of someone to speak the truth should be protected by
194
Chirau Ali Mwakwere v Robert Mabera and Others (2012) 6 (Unreported). 195
Makwere hate speech case dropped, Capital News (18 September 2012)
http://www.capitalfm.co.ke/news/2012/09/mwakwere-sorry-hate-speech-case-dropped (Retrieved 20 March 2015) 196
The National Cohesion and Integration Act sec 26 197
2014 unreported (pending) 198
Outrage as Moses Kuria makes another hate remark, Daily Nation (Kenya, Nairobi) 13th
January 2015. Retrieved
20th
March 2015 from http://www.nation.co.ke/news/politics/Outrage-as-Moses-Kuria-makes-another-hate-remark-
/-/1064/2588378/-/g10q1rz/-/index.html 199
The Constitution of Kenya 2010 Art 33. 200
The Constitution of Kenya 2010 Art 33(2). 201
K Malik, ‘Why Hate Speech should not be banned’ Pandaemonium (April 2012) 202
JS Mill & R Bertin, ‘Of the liberty of thought & discussion’ (2001)
28
all means in disregard of whether that truth is offensive or not. Simpson203
enhances Mill’s
principle by stating that there should be no convincing rationale for legally restricting speech
unless such speech is harmful to its targets and not just by it being defamatory. Herbert
Spencer204
in his book ‘Social statics’ stressed on the law of equal liberty where he stated that
every man has the right and freedom to do all that he wills provided he infringes not the equal
freedom of all others.205
In this instance, does truth refer to truth based on opinion or truth based on facts?
Opinions are subjective and therefore the truth of opinions cannot be qualified. Therefore,
opinions can be expressed only to the extent that they are not intended or likely to stir up ethnic
hatred. Opinions made in good faith should not be criminalized in a democratic society just
because they are politically offensive.206
The freedom of opinion can be limited only based on
the harmful nature, intention or likely harmful consequence of such messages.207
4.4.2 The Burden of Proof
The fact that a statement is offensive does not necessarily make it hate speech. Justice Majanja in
the case of Okiya Omtata v Attorney General & 2 others208
stated that a person should not be
denied the legitimate right to expression of ideas by the mere fact that his words are merely
offensive or against the accepted grain of political thinking.
In another case of Republic v John Ng’ang’a aka DeMathew209
the court acquitted the
accused on the basis that the prosecution did not present enough evidence linking the singer with
hate speech as alleged. The above cases demonstrate a trend of a high burden of proof for one to
be convicted of hate speech. Being a criminal offence, the proof therefore is beyond reasonable
doubt. It is thus necessary for prosecutors to acquire sufficient evidence in order to convict one
203
RM Simpson, ‘Dignity, Harm, and Hate Speech’ Law and Philosophy: An International Journal for
Jurisprudence and Legal Philosophy, (01 November 2013) 32, 6, 701-728. 204
H Spencer, Social statics (1851) 4. 205
As above. 206
Interview by Kenan Malik on ‘why hate speech should not be banned’ (April 19 2012) Cardozo School of Law,
New York. https://kenanmalik.wordpress.com/2012/04/19/why-hate-speech-should-not-be-banned (20 March 2015) 207
Therefore the mere offensive nature of a phrase is not by itself hate speech but by the intention of the speaker to
cause ethnic hatred or with regard to the circumstances, ethnic hatred is likely to be stirred up, which in the latter
case makes the offence one of strict liability. 208
The petitioner had challenged a play by Butere girls titled shackles of doom stating it amounted to hate speech. 209
2014 (unreported); Court acquits musician DeMathew over anti-Raila Song, Daily Nation (20 June 2014).
29
for hate speech. This is coupled with the challenge of unavailable parameters of hate speech thus
making the investigations and prosecutions more difficult.
4.5 Lack of Precedents
The doctrine of stare decisis is well recognized under the Constitution of Kenya 2010.210
Precedents serve as guidelines for prosecution of cases especially those involving laws that are
contentious. There has been only one case211
in which the accused has been convicted of hate
speech. This is insufficient to help prosecutors and investigators refine their skills.
Lack of proper direction by the courts on its interpretation of hate speech places the
Director of Public Prosecution in a predicament therefore reluctant to proceed with hate speech
matters. In the case of LSK v Moses Kuria212
the Director of Public Prosecution wrote to NCIC
asking for direction on whether the statement made by the accused amounted to hate speech. 213
This therefore is a concern as there is no adequate judicial guidance on the subject matter.
4.5.1 Private Statements
The law as it is does not specify whether both private and public statements amount to hate
speech. No case has been decided or direction of court given to distinguish whether hate speech
only involves public speech or also private conversations.
4.6 Financial constraints
The NCIC is tasked with developing and rolling out programs that are aimed at promoting
national integration and cohesion.214
This involves countrywide training forums to enhance
cohesion and tackling hate speech in the grassroots.
Lack of adequate financial support to sponsor these programs has made the effort done by
NCIC in tackling the root causes of ethnic hatred insignificant. Only a small portion of the total
allocation is allowed for such programs.215
210
The Constitution of Kenya 2010 Art 163(7). 211
Republic v Alan Wadi 2015 (unreported) 212
2014 (unreported)(pending) 213
Moses Kuria updates the court on hate speech case developments, Daily Nation (14 January 2015)
http://www.standardmedia.co.ke/Article/2000148027/kuria-updates-court-on-hate-speech-case-developments
(Accessed 25 March 2015) 214
National Cohesion and Integration Act Sec 24.
30
4.7 Approaches adopted by Rwanda and the United States in tackling hate speech
4.7.1 Introduction
Different states have addressed hate speech in different ways. This is dependent on the historical
experiences of each state and the risks it is willing to sacrifice to strike the balance between hate
speech and free speech. This section shall discuss different approaches Rwanda and the United
States of America have adopted in dealing with hate speech.
4.7.2 Rwanda’s Approach: Vague and Overbroad
Rwanda is a country that is limping out of a fragile history of genocide and ethnic tensions. The
1994 genocide is still fresh in the minds of civilians and state organs. The country has a history
of the media such as Radio Télévision Libre des Mille Collines (RTLM)216
and Kangura217
newspaper playing a big role in fueling ethnic massacre of over 800,000 people over a period of
three months with most being from the minority Tutsi population.218
Various personalities such as Ferdinand Nahimana,219
Jean-Bosco Barayagwiza,220
Hassan Ngeze,221
Simon Bikindi,222
Kambanda,223
Akayesu224
among others225
were convicted of
various crimes including direct and public incitement to commit genocide by the International
Criminal Tribunal for Rwanda (ICTR). The aftermath of these and the unending tension
provided fertile ground for the government to justify enactment of stringent laws226
banning
215
Ruto meets NCIC, urges cohesion, Capital News (Kenya, Nairobi) 22 July 2013. Retrieved 21
st March 2015 from
http://www.capitalfm.co.ke/news/2013/07/ruto-meets-ncic-urges-cohesion/ 216
Radio Télévision Libre des Mille Collines (RTLM) was a Rwandan radio station which broadcasted from 8 July
1993 to 31 July 1994. It played a significant role during the April-July 1994 Rwandan Genocide. It was controlled
by Ferdinand Nahimana and Jean-Bosco Barayagwiza who were convicted by ICTR for perpetrating genocide. 217
Founded by Hassan Ngeze in 1990 who was also the editor in Chief. He was found to be in control of the
newspaper and thus responsible for its content. He was found guilty of direct and public incitement to commit
genocide. 218
DF Alison, Leave None to Tell the Story: Genocide in Rwanda Human Rights Watch (1999)181-82; D Romeo,
Shake Hands With the Devil: The Failure of Humanity in Rwanda (2004)220 Carroll & Graf Publishers 219
Prosecutor v Ferdinand Nahimana ICTR-1996-11 220
Prosecutor v Jean Bosco ICTR-1997-19. 221
ICTR-99–52-T (the 'Media Trial'); 222
Prosecutor v Simon Bikindi ICTR 2001-72-1; Rwandan Pop Star whose songs were said to promote propaganda
during the violence. 223
Prosecutor v Kambanda ICTR 97-23-5 224
Prosecutor v Akayesu ICTR 96-4-T 225
Prosecutor v Serugendo ICTR-2005-84-1; Prosecutor v Ruggie ICTR-97-32-1. 226
LAW N°18/2008 of 23/07/2008 Relating to the Punishment of the Crime of Genocide Ideology Article 3.
31
‘genocide ideology, sectarianism and divisionism’ defined to penalize hate speech but seen as
chiefly to silence critics of the government.227
Article 2 of the Law Relating to the Punishment of the Crime of Genocide Ideology
defines genocide ideology as an aggregate of thoughts characterized by conduct, speeches,
documents and other acts aiming at exterminating or inciting others to exterminate people basing
on ethnic group, origin, nationality, region, color, physical appearance, sex, language, religion or
political opinion. Article 3 further characterizes the crime of genocide ideology as behavior
aimed at marginalizing, laughing at one’s misfortune, defaming, mocking, boasting, despising,
degrading, creating confusion aiming at negating the genocide which occurred, stirring up ill
feelings, taking revenge, altering testimony or evidence for the genocide which occurred.
According to a report228
by Amnesty International, neither do the Rwandan citizens nor
the professionals charged with interpreting the law such as judges and lawyers have been able to
precisely define genocide ideology. The laws have therefore been said to be broad and abstract
thus easy to find one guilty of genocide ideology even though it is not the actual offence
committed.229
Rwanda’s 2009 Media Law and 2008 law against genocide230
have been critised for
vaguely censoring the freedom of the media and using the law to threaten and prosecute
journalists and critics of the government. For example a journalist by the name Agnes Nkusi
Uwimana, was found guilty of genocide ideology, divisionism, defamation, and threatening state
security for writing an Article in 2011 that was critical of government policies and accused
government of corruption. She was accused of inciting the people against an elected government
and sentenced to 17 years in prison.231
An opposition leader, Victoire Ingabire, was also arrested in 2010 for questioning the
exclusion of Hutu genocide victims in a speech by the president at a genocide memorial. She was
tried under six charges, including spreading false propaganda with the intention to incite the
227
CJFE, ‘Whither free expression in post-genocide Rwanda?’ (20 May 2014)
https://cjfe.org/resources/features/whither-free-expression-post-genocide-rwanda (Retrieved 21 March 2015) 228
Amnesty International, ‘Safer to Stay Silent: The Chilling Effect of Rwanda’s Laws on Genocide Ideology and
Sectarianism’ (2010)17 229
As above. 230
Commonly referred to as Genocide Ideology 231
Unsafe to Speak Out: Restrictions on Freedom of Expression in Rwanda (2011)5 Amnesty International.
32
public against the state.232
Though amendments have been enacted to the 2008 genocide ideology
and 2009 Media laws, the vague provisions233
which were left untouched have been continuously
used to gag the media and suppress the freedom of expression.
The laws further allow for criminal punishment of minors under the age of twelve, as
well as parents, guardians or teachers convicted of tutoring a child with genocide ideology.234
These laws create a chilling effect on citizens since any statement made, good or bad, that is
related to genocide or government criticism can find its place within the ambit of these laws.
I recognize the unfortunate role of the media and other personalities in spreading hate
propaganda that led to the gloomy history of Rwanda. I also appreciate the value of these
stringent laws to totally suppress any incendiary speech that may agitate the fragile peace of the
Tutsis and Hutus in Rwanda. However, the laws are too vague and overbroad and thus open to
abuse by the state to tramp legitimate expression and valid opinions.
4.7.3 United States of America: Too liberal?
The United States, unlike Rwanda, has no immediate experience of genocide or any related
ethnic or racial mass murders within its borders apart from of isolated cases of racial
discrimination.235
The United States’ perspective of hate speech is therefore speculative of future
avoidance rather than reactionary to past experiences.
From an American point of view, limitation of speech is an outright breach of a
fundamental right to freedom of expression as strongly rooted in the First Amendment. The First
Amendment categorically states that the Congress shall make no law abridging the freedom of
speech or the press.236
It provides no grounds of which the government can justify limitations of
the freedom. However the United States Supreme Court asserted in the case of Chaplinsky v New
232
As above; CJFE, Whither free expression in post-genocide Rwanda? May 20 2014. Retrieved 21st March 2015
from https://cjfe.org/resources/features/whither-free-expression-post-genocide-rwanda 233
The definition of defamation in Article 1 of the Media law is too broad as it may be used to restrict expression of
opinions against the international requirements; Article 88 makes journalists responsible for opinions founded on
facts; Article 14 prohibits any criticisms on the armed forces; Obtained from Article 19, Rwanda: Proposed media
law fails to secure free press. Retrieved 21st March 2015
http://www.Article19.org/resources.php/resource/2919/en/rwanda:-proposed-media-law-fails-to-safeguard-free-
press#_ftn14 234
Unsafe to Speak Out: Restrictions on Freedom of Expression in Rwanda (2011)3 Amnesty International. 235
Sapiro v Ford Fed. Crt 1927 Detroit. 236
US Constitution Amendment 1 of 1791.
33
Hampshire237
that the right of free speech is not absolute in all times and under all
circumstances. There are some certain defined circumstances where the limitation of free speech,
prevention and punishment is allowed such as the lewd and obscene, the profane and insulting or
fighting words, those by their very utterance will inflict injury or cause immediate breach of
peace.238
It is therefore only the slimmest and absolutely necessary restrictions that can be
justified.
Jurisprudence in the United States indicate that a clear and present danger must exist
before rightfully limiting one’s legal right to freedom of expression.239
It does not recognize the
causative link between the hate propaganda and the likely violence that may ensue therefrom in
the future. The courts do not recognize the long term effect or probability of the hate remark to
cause violence.240
In R.A.V v City of St. Paul241
the Supreme Court asserted that US Constitution does not
allow suppression of expression based on content.242
It allows only prohibition of fighting words
which can provoke imminent violence243
and thus it is unconstitutional to prohibit racist and
antisemitic comments targeting a group. The US is a follower of the truth principle on the belief
that truth is likely to emerge through unfettered exchange of ideas. In Virginia v. Black244
it was
stated that the hallmark of the protection of free speech is to allow free trade in ideas including
those that majority would find distasteful.
In Brandenburg v Ohio,245
the defendant, a Ku Klux Klan member was charged and
convicted for ridiculing the President, Congress and Supreme Court and threatening vengeance if
they did not stop the alleged suppression. The Supreme Court reversed the conviction stating that
the constitution guarantees free speech and free press and thus a State should not forbid threat of
use of force or violation of the law unless such threat is directed to produce imminent lawless
action.
237
US Sup Crt 1942. 238
As above. 239
Schenck v. United States, 249 U.S. 47 (1919) US Sup Crt. J. Oliver Wendel Holmes 240
Brandenburg v Ohio U.S 394 (1969) 241
R.A.V v City of St. Paul 505 U.S 377 (1992) 242
Brown v. HArtlage, 456 U.S. 45 (1982) 243
Snyder v Phelps 562 US 2011 244
Virginia v Black 485 U.S 1157 (1985) 245
Brandenburg v Ohio U.S 394 (1969)
34
From the above discussion, it is evident that the United States approach is wide and
protects a wide range of possible discriminatory expression. It is more concerned in the end,
being the violence rather than the means, hate propaganda. It is therefore almost impossible to
ban hate speech in the United States as the regime is too liberal and overprotective in relation to
Rwanda. The type of protection in the US is therefore best suited for advanced democracies and
not fragile democracies of recent history of genocide or ethnical violence.
The next chapter shall provide a way forward by striking a middle ground of the approaches
adopted by the United States and Rwanda in a bid to address the challenges facing hate speech
investigations and prosecutions in Kenya.
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5 CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
5.1 Conclusion
Hate speech causes harm to individuals. It degrades them. It injures their dignity and sense of
self-worth. It harms the society as a whole. It destroys social harmony and encourages
discrimination and violence. It creates a hostile environment for the targeted members of that
particular society.
The holocaust, the Rwandan genocide and the history of Kenya’s ethnic violence,
including the 2007 - 2008 post-election violence, are just but a few examples of events discussed
in the study, which show the malignancy that hate speech is capable of.
The study has brought to light the contentious concept of hate speech. There is no
universally accepted definition of hate speech, neither the content nor the scope in which hate
speech can be said to have been committed. In this regard, the elements of hate speech have
remained controversial. The tag of war between free speech and hate speech has made it unclear
on what should be restricted. However, the study recognizes the need to restrict that which is
harmful or intended to harm the society.
From the in-depth study of the legal framework outlawing hate speech in Kenya, the
study revealed that despite several statutes outlawing hate speech, the provisions are not
comprehensive. This being a limitation of freedom of speech, the study expresses the need for
the laws to be coherently and exhaustively to eliminate any ambiguity. Despite the National
Cohesion and Integration Act standing out as the most elaborate amongst all, it falls short of
providing for parameters within which hate speech should operate. The content of what amounts
to hate speech is therefore not comprehensively provided for.
The study further notes that reconciliation as provided by the National Cohesion and
Integration Act is not an effective tool to deter hate speech commission. The study established
that the offenders were likely to commit hate speech right after reconciliation than if they were to
be convicted and serve a jail sentence or fine. The study concludes that hate speech would be
better deterred if were treated as a purely criminal offence with penal sanctions than availing it
options of civil matters.
36
Despite the NCIC having powers to investigate and give recommendations on any matter
of hate speech, the study notes the commission can only be involved as an advisory,
reconciliatory or interested party in a case. The study concludes that the commission would be
more effective in its mandate if it had prosecutorial powers and thus able to directly get involved
in hate speech prosecutions.
The study further identified the root cause of hate speech as ethnic hatred which is
concocted in the grass roots. Prosecutions alone won’t be a long term remedy. To effectively
mitigate hate speech, the study established that educational and training programs in vulnerable
areas would be necessary to promote public awareness on peace and harmony.
Finally, with regard to approaches taken by other jurisdictions in regulating hate speech,
the study revealed that a country’s past experiences determine the measures taken. Rwanda’s
approach and nature of legislations were found vague and overbroad and likely to be used by the
government to limit legitimate speech. On the other hand, the United States approach was found
too liberal to the point that criminalizing hate speech is almost impossible. The study concludes
that Kenya should therefore adopt a mid-level approach that is neither too stringent nor too
liberal.
5.2 Recommendations
From the foregoing conclusion, the following recommendations are made to effectively tackle
the challenge of hate speech investigations and prosecutions.
Firstly, the National Cohesion and Integration Act should be revised to provide for
comprehensive parameters under which hate speech can be determined. The thin line between
hate speech and freedom of expression should be clearly set out in the Act to guide the
investigators, prosecutors and courts in handling hate speech matters. The Act should further
clarify whether private conversations constitute hate speech.
In this regard, the research recommends comprehensive guidelines on hate speech to be
prepared and included in the National Commission and Integration Act as a Fourth Schedule
addendum. A booklet of guidelines by the NCIC is insufficient since it is not binding to the
courts.
37
Secondly, the NCIC should be accorded express prosecutorial powers under the National
Cohesion and Integration Act. This will ensure that it not only gives recommendations after
investigations but can also commence prosecutions against the offenders. This will ensure that
first hand data from investigations and skillful personnel are actively and directly involved in the
prosecution process.
Thirdly, the option of reconciliation provided by the National Cohesion and Integration
Act should be scrapped. Hate speech is a criminal offense against the state and thus it should be
handled purely as a crime subject to criminal sanctions and civil remedies.
Further, Parliament should allocate adequate funds to the NCIC to finance promotion of
educational and training programs that aim at creating public awareness, support and
advancement of peace and harmony among ethnic communities and racial groups.
With regard to brand jacking, online anonymity and monitoring hate speech online, the
government should facilitate advanced training programs to its cyber-crime sleuths to enable
them handle crimes such as brand jacking. Investigators should also receive training on using
computer programs such as WordSmith which has been successfully used in the United States to
track messages in the social media.
Lastly, in response to the dynamic nature of technology, regular trainings should be done
to investigators to ensure they are abreast with the changing trends and forums of hate speech.
These include social forums such as blogs, Facebook and twitter.
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6 BIBLIOGRAPHY
6.1 Books and Chapter Articles
Alison, DF (1999) Leave None to Tell the Story: Genocide in Rwanda New York: Human Rights
Watch
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39
Waldron, J (2012) The harm in hate speech Cambridge, Harvard University Press.
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Stürmer.New York: Cooper Square Press
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Nussbaum, M (1988) Nature, function and capability: Aristotle on political distribution. Oxford
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Sen, A (1992) Inequality Reexamined. Cambridge: Harvard University Press
6.2 Reports and Papers
Kenya National Commission on Human Rights ‘On the Brink of the Precipice: A Human Rights
Account of Kenya’s Post -2007 Election Violence’ (August 2008)
Kenya National Commission on Human Rights ‘Referendum Report’ (2005)
Report by the Commission of Inquiry on Post-Election Violence - CIPEV (Waki Report) (2008)
National Commission and Integration Commission, ‘Annual Report’ (2011-2012)
Communications Authority, ‘Sector Statistics Report’ (July 2014 - September 2015)
Communications Authority, ‘Sector Statistics Report’ (2007).
Amnesty International ‘Unsafe to Speak Out: Restrictions on Freedom of Expression in Rwanda’
(June 2011)
40
National Commission and Integration Commission, ‘Guidelines for Monitoring Hate Speech’
(2010)
Bruce-Lockhart K, ‘When does hate speech become dangerous speech? Consider Kenya and
Rwanda’ (2013)
Maina Kiai, ‘Speech, Power and Violence: Hate Speech and the Political Crisis in Kenya’
6.3 Journal Articles
Raha T, “Obscene speech and the principle of permissible Harm: Article 10 ECHR”
Matsuda, MJ ‘Public response to racist speech: Considering the victim's story’ (1 January 1989)
Michigan Law Review 87
Strauss, D & Scanlon ‘Persuasion, Autonomy and Freedom of Expression 91 Columbia’ (1991)
Law Review 334
Simpson, M, ‘Dignity, Harm and Hate Speech’ Law and Philosophy: An International Journal
for Jurisprudence and Legal Philosophy
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science in Law’ (1986) 134 University of Pennsylvania Law Review
Gaudreault, J ‘From Sisyphus’s Dilemma to Sisyphus’s Duty? A Meditation on the Regulation of
Hate Propaganda in Relation to Hate Crimes and Genocide’ (2000) McGill Law Journal 46
6.4 Thesis and Research Papers
Stave, R “Press ethics and perceptions of journalism in Turkey: An analysis of journalists’
ethical challenges with special regard to codes of conduct and hate speech” Unpublished Masters
Thesis Norwegian School of Theology 2013
Menezes J, ‘Harm and Offence in Mill’s Conception of Liberty’ University of Oxford
6.5 Newspaper Articles
‘Why Hate Speech Law Craves a Fresh Breath’ The Standard (Kenya, Nairobi) 28 June 2014
41
‘Hitler's Private Library’ New York Sunday (United States, New York) 24 September 2008)
‘University Student Jailed for Insulting President Uhuru Kenyatta’ Daily Nation (Kenya,
Nairobi) 02 January
2015
‘Outrage as Moses Kuria Makes Another Hate Remark’ Daily Nation (Kenya, Nairobi) 13th
January 2015.
‘Court Acquits Musician De Mathew over Anti Raila Song’ Daily Nation (Kenya, Nairobi) 20
June 2014
‘Court Bars Moses Kuria from Making Remarks Over the Mandera Terror Attack’ Daily Nation
(Kenya, Nairobi) 26 November 2014
‘Gatundu South Mp Moses Kuria to Appear in Court over Hate Speech charges’ Standard
Digital (Kenya, Nairobi) 15 January 2015
6.6 Internet Sources
Bryant, J ‘Two theories of Free Speech’ http://www.thebirdman.org/Index/Lbl/Lbl-
TwoTheoriesOfFreeSpeech.html (Accessed 14 January 2015)
Neier, A ‘The Future of Free Speech’ (2013) Free Speech Debate www.freespeechdebate.ox.ac.uk
(Accessed 05 January 2015)
Milly Odongo, ‘Unpacking Hate Speech’. http://www.cohesion.or.ke/news-all/144-unpacking-hate-
speech-by-commissioner-milly-odongo.html (Accessed 3 February 2015)
Victoria, SW ‘Suing Henry Ford: America's First Hate Speech Case’ American Bar Foundation.
http://www.americanbarfoundation.org/research/project/19 (Accessed 20 February 2015)
http://www.standardmedia.co.ke/ktn/video/watch/2000070781/musician-john-de-mathew-faces-hate-
charges (Accessed 24 February 2015)
C Moses, ‘Challenges of prosecuting hate speech offences.’ ILAW Kenya (May 2013)
http://ilawkenya.com/blawg/challenges-of-prosecuting-hate-speech-offences/ (Accessed20 March
2015)
