Joshua Sang: When does journalism become a crime against humanity?

Barring the domestication of the Rome Statute that set up the International Criminal Court, hate speech is a relatively small-time crime in Kenya, punishable at most with seven years in jail. Stealing a goat attracts a longer sentence — up to 14 years.

In contrast, under the Rome Statute and international speech crime law, one can be jailed for life.

Hate speech, under the rapidly evolving international law, is viewed as part of the same chain of action that leads or paves the way to the commission of crimes against humanity, war crimes and genocide.

Those responsible for hate speech are seen just as guilty as those who coordinate or participate in the crimes.

The ICC has borrowed heavily from the International Criminal Tribunal for Rwanda.

When in December 2003 the ICTR convicted Hassan Ngeze (editor of the extremist Kangura newspaper), Ferdinand Nahimana (former director of Radio-Télévision Libre des Mille Collines (RTLM), and Jean-Bosco Barayagwiza (board member of the RTLM), it ruled that the power of the media comes with great responsibility.

“Those who control such media are accountable for its consequences,” the court said.

Following the confirmation hearings in September of hate speech charges against Joshua arap Sang, the Kass FM host of the daily morning show Lene Emet (what the nation is saying in Kalenjin), the ICC ruled this week that he should be put on trial, together with William Ruto, Uhuru Kenyatta and Francis Muthaura.

Sang tells his friends, some of whom think he is “a sacrificial lamb”, that he is “as innocent as Jesus”. But he still faces the grim prospect of a trial for serious international crimes.

He faces grave charges of crimes that could, in Kenyan courts, be essentially charges of the simple crime of incitement.

He is accused of contributing to crimes against humanity committed during the 2007/8 post-election violence through his talk show.

He becomes the second journalist in the world, after more than 50 years, to be committed to an international court for trial on charges of crimes against humanity.

The Rwandan journalists were tried on charges of crimes against genocide.

The first was Julius Streicher who in 1946 became the first journalist in the world to be tried under the international speech crime law because of his work as a journalist.

He was the founder and publisher of Der Stürmer newspaper, which orchestrated propaganda campaigns against Jews. He was tried by the Nuremberg Tribunal, convicted and hanged.

If Sang were to be tried in an ordinary Kenyan court, he could been charged under section 77 of the Penal Code.

If found guilty, he would then be sentenced to a jail term not exceeding seven years.

The section states, however, that comments made in good faith and with a view to removing causes of hatred between communities are not hate speech.