Head of State and emerging political insults

Kenyans are used to high-octane politics of opponents trading harsh words against each other.

However, there is often some political leeway given to the Head of State. The past few months have seen President Uhuru Kenyatta being at the sharp end of criticism that one cannot even call constructive criticism, it is plain insult.

Indeed, the President appears unfazed at least in public. Suffice it to say that the President advised other public officials a few weeks ago to have a thick skin.

The President seems to appreciate that in a constitutional democracy, robust criticism and even plain old insult that may not be fair, will be part of the game.

At the core of this is the realisation of the constitutional function for all being equal and that the Head of State is but a citizen with added responsibilities rather than superhuman abilities.

SEDITION

The truth is that this is not the case in all countries, and has not always been the case even in Kenya. Until 1997, Kenya had a law against sedition.

This made it a crime to publish words which tended to create disaffection against the person of the resident or the government generally.

At the zenith of the oppressive application of such laws in the 1980s, a priest was prosecuted under this law for statements he had made in his own private diary!

A part from the laws on seditious publications, there is a crime under the Penal Code known as undermining the authority of a public officer.

This section of the Penal Code was declared unconstitutional in the year 2017 when a blogger who had been charged under it for having insulted the President challenged it as an undue burden on freedom of expression.

FREEDOM

The court agreed that the petition raised a significant question of whether criticism of a public officer is a ground for limiting a fundamental right enshrined in the Constitution.

The judge said criminalising criticism is curtailing the right to speak about public officers, and it derogates one's right to hold opinion.

Several countries have laws known as lèse-majesté laws. These are laws which make it a crime for an individual to detract from or affront the dignity of a sovereign power like a Head of State.

It emerged from the history of feudal States whose Head of State was often a monarch. The dignity of the monarch was fused with the sovereignty of the State.

To protect this sovereignty, it was a crime to insult the Head of State. Most of these laws were scrapped with absolute monarchies.

However, a few countries remain with some modification of these laws. One great surprise would be Germany.

PROBE

In March, 2016, Germany surprised most of the world when it indicated that it would support the prosecution of a comedian who had recited a satirical poem on television which made lewd references to the President of Turkey.

In response to this reading of the poem, the Turkish President filed a complaint in Germany claiming that he had been insulted by the recitation.

This complaint was based on a paragraph in Germany’s penal Code from 1871 when Germany was still an empire.

The law read that insulting a foreign Head of State or a member of a foreign government in Germany, in an official capacity, was a crime punishable by imprisonment not exceeding three years.

The outrage was not only one of surprise that such a law still existed in Germany, but also the fact that it required the Cabinet to approve the investigation for the crime.

German Chancellor Angela Merkel indicated in April 2016 that her government would permit the investigations and caused great consternation and outrage.

FOREIGN POLICY

The prosecutor subsequently decided not to proceed with the charges, but this left most of Germany surprised that the law still existed and that a government could actually contemplate the prosecution of a citizen under it, especially on the complaint of a foreigner.

But Germany is not alone. Switzerland also has a law restricting the insulting of a foreign Head of State. It considers such insults as detrimental to its foreign policy.

Netherland has a similar law which could attract a sentence of up to five years.

This law showed its majesty in 2007 when a 47-year-old was fined for insulting the queen of the Netherlands. Spain also fined a magazine for publishing a rude caricature of the Prince of Asturias.

In Europe, Poland’s law would probably be the harshest. In the year 2005, police arrested and charged some protesters for demonstrating against the visit of Russian President Vladimir Putin.

RESPECT

In 2012, Robert Frycz got a sentence of over one year for insulting the President on his website.

But none of this rivals the puerility to which Huber Hoffman was subjected. Mr Hoffman was arrested in a routine check at a railway station in Warsaw.

He then complained to the police that the President of Poland and his twin brother were responsible for turning Poland into a communist style dictatorship.

The police then castigated him and told him that he was under obligation to show more respect to the leaders. This is where the smelly response invoked criminal charges against him.

Maybe in the endeavour to exercise his right to remain silent, Mr Hoffman said nothing but spoke in another way. The police claim he loudly passed wind in response to the mention of the President.

Mr Hoffman was immediately arrested and charged with the offence of showing contempt to the office of the Head of State.

When Mr Hoffman failed to attend his trial, the court ordered a manhunt for him.

PUNITIVE

Outside the West, the lèse-majesté laws are more intense. In Thailand the law states that whoever defames, insults or threatens the monarch or his family or regent shall be punished with imprisonment for up to 15 years.

It is said that the insult could cover infractions such as critical text messages. In Saudi Arabia the lèse-majesté is literally terror: Insulting the King - both current or past - is considered as terrorism.

A law that took effect in 2014 states that actions that disturb public order to defame the reputation of the King are classified as terrorist acts.

In Venezuela a man was arrested by the military intelligence under similar laws for a speech which offended then-President Hugo Chavez.

In Africa, Cameroon has a similar law in the form of an offence known as sedition. That is, public criticism of the Head of State or his family is an express offence.

IMMUNE

This might be common but there is a provision that is beyond belief: Truth is not a defence.

Put differently, in such a country, telling the truth would not be the liberating trait we know it to be. On the contrary, the truth jails, it wouldn’t save.

Zimbabwe is not far behind. In December 2018 a man named Terence MKhwanazi was facing charges of having insulted the President.

The deeds to support the crime were that he had, during a public hearing in Bulawayo, pointed at the President’s portrait and accused him of some misdeeds.

In Kuwait, the law declares that the King is immune and inviolable, and derogation of this could lead to imprisonment, and in some cases exile.

In Iran, the law goes beyond the Executive and Head of State.

The Penal Code declares that anyone who insults the leaders of the three branches of government due to their duties shall not only be punished by imprisonment of up to six months, but may also be flogged 74 lashes and also fined.

MORAL LESSON

Peyman Aref, a student was flogged 74 times just before his release from prison after serving a year following his conviction for writing an insulting letter to then-President of Iran.

The prosecutions for insults to Heads of States may be rare in most countries. But not in Turkey.

A newspaper report indicates that between 2010 and 2017, 12,893 cases of insulting the President were instituted.

The courts have convicted about 2,000 persons for this offence. It shows that in Turkey, an aspiring member of the European Union, the law is still alive and kicking or rather jailing.

These examples on the whole show us that lèse-majesté laws may be on the wane in other countries but are astir in a number of cases.

Their existence shows one thing: the attitude of the society towards its leaders. That respect is necessary but adulation should not be compelled by law.

The writer is Head of Legal, Nation Media Group