The State must deal firmly with ethnic incitement on Internet and social media

Ethnic hatred and incitement to ethnic violence have now migrated to the Internet and social media in Kenya. In blogs, on Facebook and on Twitter, Kenyans have taken the venom of ethnic chauvinism, hatred and incitement to the digital world to escape the fairly effective measures adopted by the print and broadcast media restricting inciting speech.

Indeed, the retreat of the hate-mongers to the crevices of the Internet is a testament to the effectiveness of some of the measures taken to regulate harmful speech since the post-election violence.

In particular, the establishment of the National Cohesion and Integration Commission provided the country with an important mechanism for addressing incitement to ethnic violence.

Whereas that commission has been roundly criticised by many Kenyans, its constant summons to politicians allegedly engaged in ethnic incitement has considerably tempered some of the utterances that would have otherwise added fuel to the fires of ethnic divisions.

Commendably too, some technology industry players have been willing to take down some of the viral comments posted on social media platforms.

There is now in Kenya debate in both popular and policy circles as to what limits, restrictions or guidelines should be established to ensure the protection of freedom of speech and opinion without at the same time setting aflame communities.

That debate is important as the ongoing insecurity dangerously intersects with ethnic divisions and conflicts. Regulation of hate speech in Kenya is in its infancy in terms of law and policy.

Even more challenging is the policy and legal response to this kind of speech on the Internet and social media.

For all democracies, the regulation of the Internet and social media without opening the floodgates for State censorship of political speech or the control of thoughts by the powerful is a formidable challenge.

I have addressed this delicate but necessary balance in my June report to the UN Human Rights Council. That report warns that extremist groups, racist and xenophobic groups have retreated to the safety and anonymity of the Internet to recruit new members, mobilise and incite hatred against ethnic and racial groups and minorities.

Whereas some States have attempted to regulate the content on the Internet websites and social media through criminal and administrative law sanctions, the borderless nature of the Internet continues to weaken this approach.

Hate sites are sometimes located in countries that offer them near-absolute freedom, thus limiting the efforts of one country to control the content. Those opposed to any form of regulation cite this difficulty as evidence of the futility of using national law to regulate what is a global mode of communication.

Moreover, the argument goes, what is needed is more good speech to counter bad speech on the Internet and any measures to regulate the Internet are likely to lead to political censorship.

However, most rights protecting constitutions as well as international human rights law provide the framework for the prohibition of a narrow category of harmful speech.

Incitement to genocide, to war crimes and to crimes against humanity do not qualify as protected speech. No one would disagree that the restriction, and indeed the banning, of hate radios and newspapers that fuelled the Rwandan genocide would have been within the rules of human rights.

PROVIDE LEADERSHIP

The fears over the chilling effect of any form of criminal or administrative law regulating the Internet are, however, not entirely unfounded.

Consequently, any form of criminal law sanctions should be based on clear legislation and restricted to a very small category of speech.

Restrictions of even this vile speech should not be at the sole discretion of those in power, or done in secrecy in the name of national security. Even more important, such decisions must be open to review by free and independent judiciaries.

As a leader on digital technology in Africa, Kenya has the opportunity to provide the leadership on regulation of ethnically inciting Internet and social media content. The Kenyan Judiciary is well-positioned to elaborate on what constitutes prohibited speech in line with the constitutional protections of freedom of expression.

The cases on hate speech and incitement currently pending before various courts are an opportunity for the courts to provide guidelines on this issue. Also, a stakeholder approach bringing together technology companies, the State, independent institutions and civil society should be encouraged.

Independent national institutions such as the National Cohesion and Integration Commission and the Kenya National Commission on Human Rights are best placed to assess content on websites and social media and advise the government and service providers on what should be taken down.

Dr Ruteere is the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance.