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Fifth Estate

Hate Speech might undermine enjoyment of freedom of expression

Hate and dangerous speeches are topics that are emotive in Kenya. Perceived and or real hate speech especially from politicians and opinion leaders in the country, while historical are largely tied to the 2007/08 post-election violence in Kenya led to among other things the establishment of the National Cohesion and Integration Commission (NCIC).  While reports on the 2007 Post Election Violence have documented the roles played by the media and politicians in fanning the ethnic clashes and violence, this should not be used to curtail responsible freedom of expression in the country. Let’s use the established threshold on hate speech not our emotions to arrive at conclusions.

The National Cohesion and Integration Act which establishes the National Cohesion and Integration Commission makes discrimination on the basis of ethnic, religious or racial grounds a criminal offence, bars comparison of persons of different ethnic groups and makes it is illegal to harass another person based on his race or ethnicity. In addition, the Act criminalizes hate speech, which it defines to include threat, abusive words/action or material and public plays meant to fan ethnic, racial or religious hatred. Similarly, the Media Council Act of 2013 outlaws use of media forums to spread hate speech and stipulate stiff penalties on the same. In addition, Kenya is a signatory to the International Convention on Civil and Political Rights and a state party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Similarly, Kenya is a signatory to international and regional conventions that guarantee freedom of expression as a fundamental human right.

A lot of work has been done so far in trying to stem hate speech in the country by the said bodies to engage especially with the media on matters hate speech. The Media Council of Kenya has been running a project on media and hate speech over the years and aware that with the 2022 politics on the cards, journalists must be aware not be pushed into carrying the cross for others.

From their public pronouncements over the last few months, the Commission has isolated media as one of the key agents to monitor, investigate and prosecute in relation to hate speech- read- focus will be on news media- twitter, Facebook and blogs- which were identified as key players in the 2007 post-election violence.

The focus on media arises from the past reports that accused the media of irresponsible reporting that leads to electoral violence, ethnic hatred and the tendency to focus on side shows and non-issues instead of information that would inform, educate and sensitize the public to make decisions that bring about positive change.

The NCIC and MCK will start receiving a lot of complaints relating to hate speech from a lot of people. However,  such complaints must be received and reviewed in context. Kenya has a constitutional guarantee to freedom of expression and access to information under Articles 34 and 35 while at the same time as a signatory to several regional and international conventions providing for freedom of expression.  The Government has a duty to ensure that people get to know information relating to facts that show how some regions and groups have gained advantages over others in access national resources, information which they can share freely.

While it is within the government’s mandate to legislate against hate speech as provided for in Article 20 the International Covenant on Civil and Political Rights, such regulations must not infringe/ curtail freedom of expression and access to information. Measures to handle hate speech should not impede on the peoples’ right to free expression Carte blanche attempts to contain hate speech may grossly violate the rights to freedom of expression, press freedom and access to information if not done within permissible restrictions in international law.  Limiting debate about contentious issues, including access to national resources, will not address the underlying social roots of the prejudice that undermines equality.  

It is prudent that Government takes precautionary measures to ensure that people or groups intent on or deemed to be causing hatred on whatever grounds are cautioned against such in time to while at the same ensuring that their right to freely express themselves is not curtailed.

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The repeated use of hate speech by leaders during broadcasts as backgrounders, allowing people to use media platforms to spew hate messages and live programmes including live coverage and on-air call in sessions will require professional handling. The use of delayed broadcast becomes very critical at this stage while those regulating online media outlet must engage to ensure responsible use of such to disseminate content. More than ever before, the need for public awareness and education on responsible use of media platforms to do political messaging is here with us.

The Writer is the Deputy CEO and Head of Programs at the Media Council of Kenya.

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