The chairman of the Law Society of Kenya, Eric Mutua, is particularly critical of the commission’s efforts.
“I have myself identified two lawyers who use their real names and can be identified,” he said. “They post hate speech on Facebook. NCIC is looking for excuses not to do its work.”
Despite the online expressions of ethnic animosity, the presidential, parliamentary and local elections concluded without major bloodshed, and there were no reported incidences of violence known to have been sparked by social media.
In an interview with IWPR, NCIC’s Mwendi defended his organisation’s efforts to combat hate speech. He said that one of the barriers to prosecuting those who post material online is that without permission from the interior ministry, the commission does not have the power to launch an investigation on its own.
“The commission is only able to move and commence investigations on receipt of a complaint,” Mwendi said. “It is not for NCIC to identify who is spreading hate speech; there has to be a complaint. A person may complain against an individual or a group and set out the alleged contravention. You must give us the particulars. What have they uttered? If it’s (in) print, avail the print. We then check if it fits with the ingredients (of laws covering) hate speech.”
According to legal experts, however, the NCIC is not limited to investigating allegations of hate speech only when it receives a complaint. Statements to this effect from the commission have prompted concern about whether it is up to the task assigned to it.
Bob Mkangi, a Kenyan lawyer who served as a member of the Committee of Experts that drew up the new constitution which Kenya adopted in 2010, said the NCIC did have powers to investigate hate speech on its own, and did not have to wait for a complaint from a third party.
Mkangi pointed to section 25 of the NCIC Act which allows the commission to investigate of “its own accord” hate speech or comments intended to cause ethnic or racial animosity.
“It is a wide, sweeping function and power,” Mkangi said. “It doesn’t have to wait for complaints.”
Mutua of the Law Society also argues that the NCIC has a mandate to investigate and pursue charges against offenders without waiting for a complaint to be filed.
“I don’t know why it runs away from this, but maybe it is incompetence or lack of enthusiasm and lack of will to deal with issues of hate speech,” Mutua told IWPR.
But according to Mwendi, the NCIC has made online hate speech a priority and is doing its best to address it. He says the commission has invested in new equipment and new skills to address past problems.
“We have not been static,” he said. “A lot has been going on. We have taken measures and made improvements to address challenges we faced. I know people want to see something tangible, and we are doing something to improve things.”
Judie Kaberia is Kenya Coordinator for ReportingKenya.net and Special Projects Reporter at Capital FM in Nairobi.
This article was produced as part of a media development programme by IWPR and Wayamo Communication Foundation in partnership with Capital FM.