Many democratic societies today are grappling with upholding and defending free speech, as well as drawing the lines where it crosses over to hate, or even dangerous speech.
Hate speech remains a term without a universal definition. In Kenya, recent history is littered with evidence of the impact – but not necessarily direct correlation – of speech on violence, especially during election periods.
In 2007 and 2008, we saw the addition of SMS and social media to the platforms used for propagating rumours, but also the creation of innovations like Ushahidi to fill the media gap with crowdsourced and verified information.
It was after that unfortunate time that we also saw the introduction of hate speech in law.
Section 13 of the National Cohesion and Integration Act, 2008 provides a framework of what constitutes hate speech and ethnic hatred.
Article 33 of the Constitution of Kenya 2010 guarantees the right to freedom of expression, but points out that freedom does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that:
(i) constitutes ethnic hatred, vilification of others, incitement to cause harm, or
(ii) is based on any ground of discrimination as contemplated in Article 27(4).
For reference, Article 27(4) says that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
Further, Article 91 of the katiba reads that political parties shall not (a) be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis or (b) engage in or encourage violence by, or intimidation of, its members, supporters, opponents or any other person.
However, as is often the case, the problem is not the absence of legal frameworks. It takes people and institutions to enforce the words in these documents.
FROM OVERT TO COVERT
Over the past week, YouTube clips of former Nairobi mayor, George Aladwa, addressing an audience in Kibera during Mashujaa Day have done the rounds, and stirred reactions ranging from outrage at his utterances, to a spirited defence against his arrest.
Nor is Aladwa the first political leader to be careless with his words. There have been comparisons to Moses Kuria’s words to energised youth in Gatundu a couple of months back.
What dominates discourse now is the political party affiliations of each, and how the law has (not) been applied in each case.
Those defending Aladwa posit him as a victim. That he was arrested and grilled for hours while the same didn’t hold for Moses Kuria, for instance, does merit a spirited debate.
What is worrying, however, is the notion that his words were taken out of context, an argument brought forth by, among others, Raila Odinga. In so doing, they have moved the discussion along blurred lines.
The issues have been condensed into one false narrative featuring Aladwa as a symbol of some injustice.
I would like to bring back to the fore the audiences who have been subjected to Aladwa’s, Kuria’s and other politicians’ charged speeches. One trend observed about inflammatory political speech since the 2005 referendum is that it moved from being overt to covert; more parables, proverbs, and more nuanced.
The coded language doesn’t call for action to be taken against a certain group outright and the framing is in passive voice; ‘we must take action against group X’ has become ‘action must be taken against some people’.
It is left to the audience to decipher who the people are and what the action to be taken is. Whether by design or by default, this seemingly exonerates the speaker - often a politician wielding significant influence over the audience addressed - whose defence then becomes that he or she cannot be held accountable for the actions taken by his or her audience.
THE UNRECORDED CASES
We have also had hate speech and/or ethnic incitement cases taken to the courts, none of which have resulted in full prosecution or sentencing. The NCIC, in the meantime, has been employing Alternative Dispute Resolution (ADR); which has basically entailed speakers (mostly politicians) being asked to apologise to the audience they offended.
How effective that mechanism is we can’t know for sure, but perhaps the symbolism of it does resonate.
In the recent case with Mr Aladwa, CORD, in speaking out, had a chance to be the bigger party, to condemn the clear incitement that was uttered, and then address whatever context they insist was misinterpreted. Jubilee politicians, in their reactions, did not have to resort to the set of adjectives they did, to describe Mr Aladwa’s actions.
In all this, it is the audience susceptible to incitement that is all but forgotten in the discussion; the people of Kibra who were present that day, and those who were at the rally in Gatundu. What did they take away?
How are those words sitting in their minds and hearts, and are they contemplating acting on them? What is being done to counter the impact of the charged words meted out on them?
What about all the other cases that are unrecorded or brought to (social) media attention?
History has a way of repeating itself if we fail to draw lessons from it. As the Swahili proverb goes, fahali wawili wakipigana, nyasi huumia.