He made the remarks a few months after eight politicians were locked up and each of them slapped with fines ranging from Sh1 million to Sh5 million on hate speech charges/FILE
NAIROBI, Kenya, Nov 16 – Whereas Kenya is making every effort to guard next year’s General Election against political violence that has been the country’s eyesore in almost every poll, for some politicians hate speech has become their campaign strategy.
Jim Clement Ayungo, former Youth Enterprise Fund board member and now a parliamentary aspirant for Ruaraka was recently captured on video vowing that he will lead mass protests if CORD leader RailaOdinga does not win next year’s election.
He made the remarks a few months after eight politicians were locked up and each of them slapped with fines ranging from Sh1 million to Sh5 million on hate speech charges.
READ: Kuria, Waititu face harsh bail terms as court frees 8 MPs
Despite the indictment, Moses Kuria (Gatundu South MP), Ferdinand Waititu (Kabete MP), Timothy Bosire (KitutuMasaba), Junet Mohamed, Johnson Muthama (Machakos Senator), Florence Mutua (Busia Woman Representative) and Aisha Jumwa (Kilifi Woman Representative) and KimaniNgunjiri (Bahati MP) are still in office and have no plans of abandoning their political careers because of the hate speech charges despite a petitioner moving to court seeking to bar the Independent Electoral and Boundaries Commission (IEBC) from clearing them to run for elections in future.
Though Kenya has laws establishing the criminality of hate speech and establishment of the National Cohesion and Integration Commission (NCIC), politicians still spew venom whenever they get a chance to speak to vulnerable crowds especially in ‘hot spot’ areas.
Interestingly, all those charged or recorded using hate speech, cannot claim that they don’t understand that hate speech is criminal and furthermore that it has lethal implications on elections.
Inspector General of Police Joseph Boinnet has warned of dire consequences against anyone found using hate speech.
“If you engage in hate speech, get ready for the consequences. This time round we are not sparing anybody, not anyone at all.”
The situation has been so desperate that President Uhuru Kenyatta, US Ambassador Robert Godec, church leaders and countless other people and groups have pleaded with politicians to ensure the 2017 General Election is peaceful.
But their pleas have fallen on deaf ears.
The topic of hate speech is not a light matter for a country that has been through a history of violence along political and ethnic divisions right from the 1992 clashes to the 2007/8 elections that left over 1,000 people dead and about 650,000 others displaced.
It was for that reason that Kenya’s laws against hate speech were solidified not only in the Constitution but also in the establishment of NCIC.
Dr Peter Onyoyo a law lecturer at the University of Nairobi in a paper lays emphasis on the importance of criminalising hate speech to protect masses from its implications.
“In a spirit of taking human rights home, Kenya entrenched hate speech in its laws as a way of protecting individuals and groups from any organised or spontaneous criminal offence against them that may be provoked by hate speech.”
Kenya is preparing for the second election under the new Constitution in August 2017 and the volatility of the country’s political and ethnic groupings are particularly of concern.
But the disturbing question has been why politicians are persistently using hate speech even though they know what it is capable of and that it is criminalised.
Is this mere impunity or is it failure of laws on hate speech?
It is a combination of various factors according to former Managing Editor, Special Projects for the Daily Nation Macharia Gaitho.
In the first place laws put in place to deal with hate speech, he argues are insufficient in that they lack stiff penalties.
“Penalty of hate speech is only on paper but not in application. The NCIC has turned out to be quite toothless. In most cases it hardly prosecutes any cases and secures any conviction,” he opined.
Gaitho further traces the insufficiency of laws on hate speech to the failure of implementing the election law that bestows IEBC with powers to bar candidates engaged in hate speech from vying for elective posts.
“Those laws have never been applied. We pretend to fight hate speech. As long as there are no penalties politicians will be free to go and spew all the nonsense they want,” Gaitho deems.
The reconciliatory clause is another provision identified as a gap that encourages people to use hate speech knowing they can get away with it as long as they can issue a public apology.
Under Article 159 (2) (c) of the Constitution, alternative means of dispute resolution including reconciliation, mediation, arbitration and traditional resolution are allowed as an out-of-court settlement.
“It is a provision provided by law but it is being exploited by those who know they can say anything and get away with it because all they will do is issue an apology or reconcile with the subject and then tomorrow repeat the same offence and still there will be no penalty,” Gaitho says.
Political Scientist Mutahi Ngunyi also pleaded with NCIC to invoke the reconciliatory provision to allow him to issue a public apology for his hateful remarks against the Luo Community.
In January 2015, MP Kuria also offered a public apology over Facebook posts deemed hateful.
An obstacle which Director of Public Prosecutions KeriakoTobiko also cites as a challenge in prosecuting hate speech is the leniency of the law even on serial inciters.
Kuria is one of the politicians facing multiple cases over hate speech remarks.
In June 2014, the DPP ordered his prosecution for incitement and hate speech on Facebook.
In June 2016, Kuria was at it again.
He was among the eight politicians charged for using hate speech.
But Bob Mkangi, a constitutional expert contests that the law alone cannot win the fight against hate speech.
He believes that a comprehensive approach with combination of the law and deeper analysis of the polarisation in the country will unearth some of the reasons that lead to use of hate speech.
“It is difficult to legalise an issue which is very much societal or very much within the bracket of moral philosophy and try to use the law to tackle such an issue. We have this culture of trying to address every issue legally without supporting the law and I think socially we are failing,” he explains.
According to Mkangi, all groups in the country especially political parties should instigate an open conversation to unearth root causes of hate speech if at all laws governing it are to be efficient in securing peaceful elections.
Mkangi said “it will be important for Kenya to examine itself by asking why we have hate speech because we cannot have hate speech if we don’t have hatred.”
It is also his contention that stiff penalties are not an automatic deterrent to some.
“If we put someone in jail because of hate speech, will it make others not to utter such things? Even in other offences people know that if you commit murder you may be jailed for life but everyday people are killing.”
But it is a point that Gaitho challenges.
If few politicians were put in jail for using hate speech, Gaitho said it will serve as a lesson to others.
“The onus is on the NCIC and all other agencies that are charged with this thing to make an example particularly of those people that have become quite notorious. I watched the clip of the Ruaraka aspirant – it is quite terrifying that people can still talk like that.”
According to Tobiko, prosecuting hate speech has also been a difficult affair due to lengthy court processes and the intricate process of securing evidence and witnesses.
“As the cases progress, witnesses are compromised, they refuse to testify even after accepting to testify before the matter is taken to court.”
He concurs with Gaitho that for the law to be successful in addressing hate speech, stiff penalties should apply.
“Those taken to court are released on lenient bond/bail terms. Even the serial inciters/hate mongers, they get lenient terms,” Tobiko regrets.
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