Speech that merely insults, annoys or makes people uncomfortable is not a criminal offence and should not be targeted in attempts to “clean up” the information space. While public discourse in Kenya often contains crude, offensive or distasteful language, especially in political rallies, places of worship and community gatherings, criminalising such speech is neither effective nor necessary.
There are far more serious threats within digital spaces that demand attention. These include disinformation, information manipulation, recruitment into violent extremism, radicalisation, erosion of media credibility and declining public trust. Responding to these challenges through broad laws targeting speech will not work. Lawmaking will never catch up with innovation or human creativity.
What societies urgently need is not more restrictive legislation but stronger media, information and digital literacy. Research consistently shows that literacy empowers citizens to navigate misinformation, evaluate content critically and participate responsibly in public discourse. These skills should be institutionalised, including through formal and informal education systems.
Africans are deeply oral societies, and insults form part of our cultural expression and linguistic richness. From market days and cultural ceremonies to funerals, weddings and traditional songs, verbal sparring and satire are woven into everyday life. Attempts to legislate away these realities misunderstand both culture and communication. Rather than criminalising expression, governments should invest in helping societies embrace technology, innovation and creativity.
International law provides clear guidance. Speech is primarily regulated under the International Covenant on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination and the Convention on the Prevention and Punishment of the Crime of Genocide. Global free-expression experts agree on a simple principle: speech that intentionally incites genocide or violence may be criminalised; speech that is merely disturbing, shocking or offensive should not.
Kenya’s digital space is vibrant and youthful. With millions of young people actively engaged in governance and public affairs online, attempting to police insult or annoyance would be enormously costly and counterproductive. National resources are better spent on education, literacy and civic engagement than on surveillance and repression.
It is therefore troubling that journalists and content creators continue to face harassment by security agencies for alleged criminal defamation or “insulting” those in authority while commenting on matters of public interest. In 2010, the African Commission on Human and Peoples’ Rights called for the abolition of criminal defamation laws. In Kenya, institutions such as the Media Council of Kenya’s Complaints Commission exist precisely to decriminalise press-related disputes.
Kenyan courts have also provided important guidance. Criminal defamation provisions and sections of the Computer Misuse and Cybercrimes Act have been declared unconstitutional for violating freedom of expression and press freedom, although some rulings were later overturned on appeal. While freedom of expression is not unlimited, its recognised limitations are narrow and clear: national security, public health and incitement to hatred or violence. Protection of individual reputations is not among these exceptions, and even the Data Protection Act exempts journalists reporting on matters of public interest.
Criminal defamation and insult laws remain among the most significant obstacles to independent media and free expression across Africa. This was recognised as early as 2007 when African journalists and media organisations adopted the Declaration of Table Mountain, calling on governments to decriminalise defamation as a cornerstone of press freedom.
A society committed to democracy must tolerate speech that annoys, offends or insults. Criminal law should be reserved for real harm, not bruised egos.
