Ndemo’s remarks amount to suppression of free speech

Saturday January 19 2013



They say that “bad habits” die hard. That’s what I thought of Information PS Bitange Ndemo’s rant against me on national TV. He called me “unpatriotic” and labelled as “garbage” my Sunday Nation column.

He lumped me with “hate mongers” in the blogosphere. Then he called my column “trash” (“Makau can do better than prophesying doom,” Sunday Nation, January 13, 2013). I thought “defamation” and suppression of “free speech”.

On TV, the celebrated bureaucrat was flanked by Deputy Police Spokesman Charles Owino and National Cohesion and Integration Commission chairperson Mzalendo Kibunjia.

The three spat fire and vowed to arrest and prosecute “hate-speakers”. When did Dr Ndemo become a cop? We are headed down the cliff when State agents decide who is — and isn’t — patriotic.

But Dr Ndemo’s TV rant begs more questions than it answers. Why, for example, did he single me out? What in my column could specifically be classified – in law – as hate speech?

Was Dr Ndemo speaking for himself, or was he a mouthpiece for someone else? What did he seek to achieve by telling Kenyans that I wasn’t a “patriot?” Then I asked myself this question — is the Kanu-era really over if a senior official can attack a scholar the way Dr Ndemo did?

But I was also struck by another thing. Dr Ndemo was largely discombobulated during his rant. Was his conscience gnawing at him? Did he get a visit from “devils” and “dark forces?”

Dr Ndemo seems to have been particularly riled by my column (“Why loser of March election may not concede,” Sunday Nation, January 6, 2013). He charged that as a “distinguished Kenyan” I was scaring away investors.

I thought what I wrote was plainly clear to every honest thinker. How does “shooting the messenger” kill the message? I noticed that Dr Ndemo didn’t actually make a counter-argument. He didn’t say that my analysis was wrong. But he thought it should be suppressed because — although correct — it would scare investors away.

Conceal truth

Dr Ndemo would rather impose censorship than speak truth to power. He wants Kenya to be Orwellian — conceal the truth through propaganda, misinformation, manipulation and surveillance.

Dr Ndemo’s attack on me was nothing short of an attempt to overthrow the new Constitution. He seems to think that anything he disagrees with is “hate speech”. What he doesn’t know is that free speech is one of the key pillars — virtues — in the Constitution.

That’s why “free speech” trumps “hate speech” in the Constitution. The bar to prove “hate speech” is so high that it’s not easy to do so.

That’s because censorship under any pretence — hate speech, or national security — is the biggest threat to democracy. It’s why the benefit goes to the speaker when there’s a tie with the censor, or the State. Dr Ndemo shouldn’t take us back to the dark days of Kanu.

Dr Ndemo took issue with me for “discrediting” the IEBC. When I pushed him on Twitter, he “argued” that the 2008 post-election violence “started with discrediting ECK”. Dr Ndemo, a scholar, ought to know better, and I told him so.

The 2008 mayhem occurred because the ECK couldn’t, or wouldn’t, stop ballot stuffing, vote-stealing, and “voodoo math” in vote counting. Perhaps Dr Ndemo should re-read the Kriegler report.

Things at the ECK got so bad that ECK chair Samuel Kivuitu declared that he didn’t know who had won the election. In my column, I simply warned that the bungling IEBC could swoon under the weight of a contested election. I expected Dr Ndemo to agree that wasn’t rocket science.

The timing of Dr Ndemo’s attack is curious. It wasn’t clear he was accusing me of hate speech. If so, why only mention me by name while identifying hate blogs? His attack seems part of a larger political campaign to discredit and silence me and other human rights defenders.

Machiavellian attempt

It reminded me of an absurd and Machiavellian attempt by the CID to investigate me for allegedly “tampering” with ICC witnesses. Then, as now, the focus was my Sunday Nation column. I’m sure there are some who would like nothing more than to see my Sunday Nation column terminated. It’s quite clear that the column is a source of angst for some, but a welcome contribution to many.

I don’t deny that there’s hate speech, and that it’s extremely dangerous in an ethnically polarised society like Kenya. This is more so during elections. Hate speakers, including virulent bloggers, must be tracked down and prosecuted.

But that’s easier said than done. Nor should anti-hate speech campaigns be used to silence opponents — or proponents — of certain politicians or political groups.

But I am clear that politicians are the worst hate speech offenders. Not only do they organise by stoking tribal hatred, they do so in the open market place. Dr Ndemo and his hate speech police should go after politicians before expending scarce resources trawling Facebook and Twitter. Dr Ndemo apparently classifies as “hate speech” anything he disagrees with.

The PS must be honest to himself. It’s not my column opposing impunity — or warning Kenyans about the dire consequences of making unwise political decisions — that will harm investment.

Prof Joel D. Barkan, a renowned American “Kenyanologist,” has made similar predictions on the website of the influential Council on Foreign Relations in New York — http://www.cfr.org/kenya/electoral-violence-kenya/p29761.

Dr Ndemo should cheer me on, and worry more about the effect on investors of the International Criminal Court cases, killings in Tana River, and pre-election violence. Gagging me would only kill free speech, the pivot of democracy.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and chair of the KHRC. Twitter @makaumutua