KENYATTA UNIVERSITY

SCHOOL OF LAW

LPL 401

DISSERTATION TITLE

FREEDOM OF EXPRESSION: EXPLORING THE EFFECTIVENESS OF HATE

SPEECH LEGISLATION IN KENYA

(9,384 WORDS)

VICTOR MAOBE

L95/1236/2012

A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE DEGREE OF

BACHELOR OF LAWS [BACCALAREUS LEGUME (LLB)] OF KENYATTA

UNIVERSITY

MAY 2016

i
DECLARATIONS

1. STUDENT’S DECLARATION

This Dissertation is my original work and has not been presented for examination or for any other

purpose to any other institution other than Kenyatta University for academic credit.

VICTOR O. MAOBE L95/1236/2012 01/05/2016

NAME OF STUDENT REGISTRATION NUMBER DATE

2. SUPERVISOR’S DECLARATION

This work has been submitted with my approval as supervisor.

MR BULUMA BWIRE ……………… ……………….

NAME OF SUPERVISOR SIGNATURE DATE

ii
TABLE OF CONTENTS
DECLARATIONS .............................................................................................................................................. ii
LIST OF ABBREVIATIONS AND ACRONYMS .......................................................................................... v
LIST OF STATUTES AND LEGAL INSTRUMENTS USED ...................................................................... vi
INTERNATIONAL INSTRUMENTS ............................................................................................................ vi
MUNICIPAL LEGISLATIONS ...................................................................................................................... vi
KENYA ....................................................................................................................................................... vi
RWANDA .................................................................................................................................................. vii
LIST OF CASES ............................................................................................................................................ vii
KENYA ...................................................................................................................................................... vii
RWANDA .................................................................................................................................................viii
ABSTRACT........................................................................................................................................................ ix
ACKNOWLEDGEMENT.................................................................................................................................. x
CHAPTER ONE: ................................................................................................................................................ 1
INTRODUCTION .............................................................................................................................................. 1
1.1 BACKGROUND OF THE STUDY .................................................................................................... 1
1.2 STATEMENT OF THE PROBLEM ................................................................................................... 4
1.3 STUDY OBJECTIVES............................................................................................................................... 5
1.4 RESEARCH QUESTIONS AND RESEARCH HYPOTHESIS ................................................................ 6
1.41 RESEARCH QUESTIONS ................................................................................................................ 6
1.42 RESEARCH HYPOTHESIS ............................................................................................................. 6
1.5 SIGNIFICANCE OF THE STUDY............................................................................................................ 7
1.6 LIMITATION OF THE STUDY ................................................................................................................ 7
1.7 THEORETICAL FRAMEWORK .............................................................................................................. 7
1.8 LITERATURE REVIEW ......................................................................................................................... 11
1.9 RESEARCH METHODOLOGY.............................................................................................................. 13
1.10 SCOPE OF THE STUDY ....................................................................................................................... 14
2.1 INTRODUCTION .................................................................................................................................... 15
2.2 THE CONSTITUTION OF KENYA 2010 ............................................................................................... 16
2.3 LEGISLATIVE FRAMEWORK .............................................................................................................. 17
2.31 THE PENAL CODE ......................................................................................................................... 17
2.32 THE NATIONAL COHESION AND INTEGRATION ACT ...................................................... 18
2.33 THE MEDIA ACT 3 OF 2007 ......................................................................................................... 20
2.34 KENYA INFORMATION AND COMMUNICATIONS ACT .................................................... 21
2.35 THE ELECTIONS ACT .................................................................................................................. 21

iii
 2.4 INTERNATIONAL STATUTES ............................................................................................................. 22
2.41 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS .............................. 22
3.3 A “MUZZLED AND ATROPHIED” MEDIA ......................................................................................... 26
3.4 LAWS RESTRICTING SPEECH IN RWANDA .................................................................................... 27
3.41THE PRESS LAW ............................................................................................................................. 28
3.42 THE DIVISIONISM LAW .............................................................................................................. 29
3.43 THE GENOCIDE IDEOLOGY LAW ........................................................................................................ 30
4.1 CONCLUSION ............................................................................................................................................. 32
4.2 RECOMMENDATION ................................................................................................................................ 35
BOOKS AND CHAPTER ARTICLES .............................................................................................................. 38
REPORTS AND PAPERS.................................................................................................................................. 39
JOURNAL ARTICLES ...................................................................................................................................... 40
NEWSPAPER ARTICLES ................................................................................................................................. 41
INTERNET SOURCES ...................................................................................................................................... 41

iv
LIST OF ABBREVIATIONS AND ACRONYMS

1. CERD: International Convention on Elimination of All Forms of Racial Discrimination

2. DPP: Director of Public Prosecutions

3. NCIC: National Cohesion and Integration Commission

4. ECHR: European Convention for the Protection of Human Rights and Fundamental

Freedoms

5. ICC: International Criminal Court

6. ICCPR: International Covenant on Civil and Political Rights

7. ICTR: International Criminal Tribunal for Rwanda

8. KNCHR: Kenya National Commission on Human Rights

9. LSK: Law Society of Kenya

10. UDHR: Universal Declaration on Human Rights

v
LIST OF STATUTES AND LEGAL INSTRUMENTS USED

INTERNATIONAL INSTRUMENTS

1. Universal Declaration on Human Rights 1948.

2. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

3. International Convention on Elimination of All Forms of Racial Discrimination 1969.

4. International Covenant on Civil and Political Rights 1966.

MUNICIPAL LEGISLATIONS

KENYA

1. The Constitution of Kenya 1963.

2. The Constitution of Kenya 2010.

3. The Elections Act 24 of 2011.

4. The Kenya Communications Act 2 of 1998.

5. The Media Act 3 of 2007.

6. The National Cohesion and Integration Act 12 of 2008.

7. The Penal Code Cap 63.

vi
RWANDA

1. Constitution of the Republic of Rwanda 2003 (Rwanda).

2. Law No. 18/2002 Governing the Press 2002 (Rwanda).

3. Law No. 47/2001 On Prevention, Suppression and Punishment of the Crime of Discrimination

and Sectarianism 2002 (Rwanda).

4. Law No. 33 BIS/2003 Repressing the Crime of Genocide, Crimes Against Humanity and War

Crimes 2003 (Rwanda).

LIST OF CASES

KENYA

1. Law Society of K v Moses Kuria (2014) Pending.

2. OkiyaOmitatahOkoiti v Attorney General and P.S ministry of education (2013) 192 (HC).

3. Republic v John Ng’ang’a alias De Mathew (2014) Unreported.

4. Chirau Ali Mwakwere v Robert Mabera and 4 others (2012) 6 (HC) Nairobi.

5. Republic v Alan Wadi(2015) Unreported.

6. Republic v Wilfred Machage and 3 others (2010) 1140 (CM) Nairobi.

7. Republic v KamandawaKioi(2014) Unreported.

8. OkiyaOmtataOkoiti v Attorney General, The PS Ministry of Education and another (2013)

123(HC) Nairobi.

vii
RWANDA

1. The Prosecutor v. Nahimana (Judgment) [2003]

2. Prosecutor v Jean Bosco ICTR-1997-19.

3. The Prosecutor v. Akayesu (Judgment) [1998].

4. Prosecutor v Serugendo ICTR-2005-84-1.

5. Prosecutor v Kambanda ICTR 97-23-5.

6. Prosecutor v Simon Bikindi ICTR 2001-72-1.

7. Prosecutor v Ferdinand Nahimana ICTR-1996-11.

viii
ABSTRACT

Hate speech has always been a thorny issue facing most societies that labor to strike a balance

between the freedom of expressing distasteful opinions and the right not to be victimized because

of expressing oneself. The right to freedom of opinion and expression is a fundamental right which

safeguards the exercise of all other rights and is a critical underpinning of democracy. It is a

complex nexus to determine the end of freedom of expression and the beginning of hate speech.

The Constitution of Kenya 2010 provides for the right to freedom of expression to every person.

However, it is not absolute in that it does not extend to hate speech, incitement to violence or

advocacy of hatred on ethnic grounds. Multiple laws including the National Cohesion and

Integration Act have also been legislated to outlaw hate speech.

Propagation of hate speech has consequences. Hate speech clogs the wheels of social harmony and

breeds seeds of mistrust and violence. Violence like war has its genesis in the minds and speech

of men. Despite of the existing laws, however influenced by standpoint, the objective mind will

not deny that hate speech articulations whichever the justification has not abated in Kenya. The

increasing cases of hate speech in Kenya with surprisingly low rates of prosecutions points out to

a lacuna in the current constitutional law, common law and judicial remedies available to abate the

vice.

This study objectively proposes an effective legal framework of criminalization of hate. Here

valuable lessons are noted from countries that have successfully criminalized hate speech such as

Rwanda and the United States.

ix
ACKNOWLEDGEMENT

I would like to express my most honest and deepest appreciation to everyone that provided me the

possibility of accomplishing the writing of this dissertation. Moreover, I give special thanks of

gratitude to my final year dissertation supervisor Mr. Buluma Bwire, whose devoted contribution

in encouragement and stimulating ideas, aided my project especially in writing this report.

Furthermore I would also wish to acknowledge with candid appreciation the vital role that the staff

of Kenyatta University School of Law, who offered me the privilege of utilizing all the needed

materials both structural and literal to complete this dissertation. Finally I remarkably appreciate

all the family members and friends that gave me the moral and financial support, your help to me

was truly invaluable.

x
 CHAPTER ONE:

INTRODUCTION

1.1 BACKGROUND OF THE STUDY

If uttered words results in inciting unlawful acts, breach of social order and brings revolt and pain

numerous vital aspects of social and individual interests will be adversely affected 1 . Hate speech

has through the history of social interactions been a conduit for conveying and aiding genocide

and crimes against humanity2.

The prosecutions of the Nazi confederates Hans Fritzche and Streicher Julius at Nuremberg

international military tribunal were the first trials of hate speech in history3. Jurisprudence that

emerged from these trials has undeniably informed the aftermath legal regimes of hate speech

across civil and common law regimes4.

After a disputed presidential general election in 2007, Kenya sank into a pool of violence. This

resulted to more than one thousand people dead and almost half a million citizens displaced from

their homes.5 A closer dissection of the violence and patterns of executions of the violence revealed

that hate speech prior to the elections played a key role.6

1
Joel Feinberg, ‘Limits to the free expression of opinion’ in: Joel Feinberg and Hyman Gross 1 stedPhilosophy of law
(1975) 135-152
2
Dovellhttp://www.worldpolicy.org/blog/2010/11/11/hate-speech-leads-genocide (accessed on 12November 2015)
3
The International Military Tribunal (IMT) sitting at Nuremberg Germany, The trial of German major
War criminals (London 1950)
4
Dominick McGoldrick and Thérèse O’Donnell, ‘Hate-speech laws: consistency with national and international
human rights law’, Legal studies 18 (1998) at page 453-485, there 454.
5
Ismail, Jamal Abdi, and James Deane 2008 the 2007 General Election in Kenya and Its Aftermath: The Role of Local
Language Media. The International Journal ofPress/Politics 13:319-327.
6
IREC, Independent Review Commission. 2008. Report of the Independent Review Commission on the General
Elections held in Kenya on 27 December 2007. Nairobi.

1
As the conflict unrolled, hate speech through text messages, radio broadcast and speeches

invigorated groups to rise in arms against each other. Vernacular radio satiations permitted the

broadcast of hate messages that immediately provoked ethnic hatred.7The hate peddlers during the

2007 elections voiced not only common ethnic stereotypes but also cold and degrading language;

for instance people were called “weeds”8 that needed to be cleansed. This use of hateful speech

analogies were a key indicator that the conflict was on course to a bloodbath.9

Cases of speech that directly endorsed criminal acts of murder of innocent people on systematic

ethnic lines became rampant. However the legal framework that was available then was merely

the Kenyan Penal Code.10 It did not extensively give counsel on what constituted ‘hate speech’.

The crimes as posited were obscure and vague making it almost impossible to detect forms of

expression that constituted an offence 11 though such expressions were rampant.

After the post-election violence, radical legal framework changes on hate speech were realized.

The Media Act, 200712 provided for a code of conduct that regulated hate speech broadcast and

the preservation of the freedom of expression13.

7
EU, Election Observation Mission. 2008. Kenya: Final Report General Elections 27 December 2007. European
Union
8
http://www.csmonitor.com/World/Africa/2010/0618/Kenya-reins-in-hate-speech-ahead-of-constitution-vote
(Accessed on 12 November 2015)
9
‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’ (August 2008)
10
Section 96 creates an offence of incitement to violence. The offence is couched in the following terms: “Any person
who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints or publishes any words, or
does any act or thing, indicating or implying that it is or might be desirable to do, or omit to do, any act the doing or
omission of which is calculated- to bring death or physical injury to any person or to any class, community or body of
persons is an offence punishable to up to 5 years in prison.
11
http://www.pambazuka.net/en/category.php/comment/51378 (Date of use 12/10/2015)
12
Act 3 of 2007
13
The Second Schedule of the Media Act contains the “Code of Conduct for the Practice of Journalism” which is
relevant to the regulation of hate speech and the protection of freedom of expression in Kenya in various ways.

2
There was established the NCIC14 which was commissioned to enhance and sustain processes that

alleviate all forms of ethnic discrimination and promote diversity through knowledge creation,

capacity building, advocacy and pertinent policy development.15 The constitution of Kenya 2010

also breathed in life in precisely16 warranting the freedom of expression. The constitutional drafters

recognized certain forms of negative speech which do not further the democratic ideal and

separated them constitutionally17.

However despite those efforts; the rate of politicians and other influential citizens giving hate

speech has not declined18. Time after time in broad daylight and in the lenses of media cameras

hate speech has been propagated targeting both ethnic and individual profiles. Surprisingly

prosecutions and convictions of the suspect offenders have not been forthcoming. It is from this

background that this study launches its quest in achieving its objectives and aims.

14
Under the National Cohesion and Integration Act (Act No.12 of 2008).
15
http://cohesion.or.ke/index.php/about-us/mission-vision (Date of use 14/10/2015)
16
Article 33 (1)
17
Article 33 (2)
18
Kenya MP Charged for Hate Speech’ (BBC News) http://www.bbc.com/news/world-africa(Accessed on
23November 2015 )

3
1.2 STATEMENT OF THE PROBLEM

Despite the waves of series of hate speech by influential politicians in Kenya in a recent past, the

NCIC has only launched few formal investigations under the law criminalizing hate speech. The

disillusionment on the efforts of the NCIC’S efficiency and competence has even caught the

attention of senior attorneys in the country.

The chairman of the Law Society of Kenya, Eric Mutua, is particularly critical of the commission’s

efforts.19 The (NCIC) has conceded that it is facing barriers in prosecuting hate speech charges

due to inadequacy of the legal framework20

This study seeks to find answers as to what makes investigation, prosecution conviction for hate

speech offenders in Kenya difficult, what gap exists in the legal framework governing hate speech

and therefore which remedies are ripe for ensuring hate speech mongers are brought to book while

still yet preserving the citizen’s right to freedom of expression.

19
“I have myself identified two lawyers who use their real names and can be identified,” he said. “They post hate
speech on Facebook. NCIC is looking for excuses not to do its work.”
20
National Cohesion and Integration Commission, Guidelines for Monitoring Hate Speech (August 2010) 8; The
National Cohesion and Integration Act 12 of 2008 secs 13 & 62;

4
1.3 STUDY OBJECTIVES

This study aims to investigate and assess the effectiveness of the legal model in Kenya that

prohibits hate speech in Kenya. Through intensive analysis of case laws and literature review; this

study aims to unravel the reasons behind the failed legal approach of investigation, prosecution

and conviction of hate speech offenders.

Consequently, it is the objective of this study to discuss the existing threats to implementation of

legal regime on hate speech and thereafter propose effective, practicable legal recommendations

to offset the current stalement.

5
1.4 RESEARCH QUESTIONS AND RESEARCH HYPOTHESIS

1.41 RESEARCH QUESTIONS

This research study will look into the tension between hate speech and free political expression

and will aim to answer the following questions:

1. What is the history and development of the legal framework governing hate speech in Kenya?

2. Are the limitations placed on hate speech in terms of the Kenyan Constitution, common law

remedies and current legislation sufficient to limit hate speech?

3. What threats exists in the implementation of hate speech legislative framework; including

investigation and prosecution of offenders?

4. In view of challenges is it possible to criminalize hate speech effectively through legislation

while yet preserving the freedom of expression?

5. With comparative studies in leading countries; what are the remedies that exist to confront the

current challenges in Kenya?

1.42 RESEARCH HYPOTHESIS

This study hypothesizes that hate speech has a wider social impact and except for an effective legal

regime that encompasses fully aspects of investigation prosecution and conviction of the offenders

the realization of a hate speech free country would not be achieved and that consequently from a

freedom to speech perspective such restrictions on hate speech are justified.

6
1.5 SIGNIFICANCE OF THE STUDY

The incidents of hate speech remarks are on a record high in Kenya at the time which the citizens

need the legal framework on hate speech to ensure offenders are brought to book, it has indeed so

far been toothless and underwhelming. This importance and value of this study cannot therefore

be in question. It seeks to find the real reasons to this failure of the existing law and thereafter give

well-reasoned and thought out recommendations to correct the challenges.

1.6 LIMITATION OF THE STUDY

Although this study has arrived at its aims, there existed some inevitable limitations. First, there

exists a limitation to the official judicial statistical and case data information on hate speech since

most cases have not been officially investigated or alternatively the cases are still in court hence

unreported.

Since hate speech is an emotive issue among Kenyans; this study has limited itself in the examples

it cites to use; especially where convictions have not been made. This is to ensure that prejudice

and political undertones do not obscure the real intents of this study. Consequently in lack of such

examples affects the clarity of the issues raised.

1.7 THEORETICAL FRAMEWORK

This study is hinged on the positivist theory of Utilitarianism21 constructed by Jeremy Bentham

(1780) and John Stuart Mill (1806-1873). Their liberal ideologies are much more relevant in the

present world setting.

21
A normative ethical theory developed by Jeremy Bentham and advanced by John Stuart Mill.

7
Utilitarianism looks beyond any given act itself to assess the contribution of an act towards the

achieving of one’s purposes22 and asserts that every action should have the goal of promoting the

greatest happiness for the greatest number.23

This theory focuses on the consequences of choosing one action against another. It requires one to

traffic beyond the scope of one’s own interests by considering the interests of others. John Stuart

Mill24 essay On Liberty25argues that free speech is for the benefit of all and it should be protected.

For Mill, absolute truth and correctness does not exist26. In robust proportions he asserted;

“...peculiar evil of silencing the expression of an opinion is that it is robbing the human

race; posterity as well as the existing generation; those who dissent from the opinion, still

more than those who hold it. If the opinion is right, they are deprived of the opportunity of

exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer

perception and livelier impression of truth, produced by its collision with error.”27

The nineteenth century thinker however avers that speech which causes harm is against the interest

of others and therefore it should be curtailed. His core argument is that the liberty to speech can

be stripped off by a utilitarian value.

22
Woller& Patterson, 1997, p. 108
23
McAuliffe, 2006, p. 376
24
John Stuart Mill (1806 – 1873) was a British philosopher and political economist who was an influential
contributor to social theory, political theory and political economy. He is a proponent of utilitarianism and well
known for his concept of liberty that justifies the freedom of the individual in opposition to unlimited state
control
25
Of which the second chapter is especially relevant for this study.
26
See, for example, Isaiah Berlin, Four Essays On Liberty 188 (Oxford, 1969) ("[Mill's argument assumes] that
human knowledge was in principle never complete, and always fallible.").
27
McCallum, On liberty. By J.S.Mill, 14-15

8
According to Mill’s Harm Principle28 any speech that manufactures a harmful action qualifies as

hate speech.29 Mill’s theory suggests an elaborate demarcation between speech and conduct; the

state can and ought to regulate speech annexed conduct that contains harmful implications. This

has been explained by Eric Barendt30 As Barendt clarified the state is entitled to limit speech on

the basis that its audience may create dangerous beliefs which would be used to commit harmful

deeds31. The conduct that has a harmful effect is in regards with Mill, is that which disobeys

implicit social agreements that dictate social interactions.32

A jurisprudential scholar and proponent of utilitarianism, Simpson beefed up Mills assertions by

introducing the harm prevention theory as a basis for curbing hate speech. Simpson argues that

whether defamatory or offensive, speech can only be limited if it is harmful to the society. 33 In a

Stuart Mill perspective, a speech that causes the production of a harmful action is obviously

harmful, and hate speech often qualifies in this respect.

This utilitarianism harm principle was been applied not only in some Supreme Court cases of the

United States of America but also by the Canada Supreme Court 34 in Canada that upheld a curfew

and punitive measures35 on some forms of hate speech and pornographic expression.

28
John Stuart Mill, On Liberty, (Hackett, 1978) (Elizabeth Rappaport, ed); John Stuart Mill, Utilitarianism (Hackett,
1979) (George Sher, ed).14-15
29
J Rodriguez ‘Freedom of Expression from the Standpoint of JS Mill’s On Liberty.’ 15
30
Eric Barendt, Freedom of speech (Oxford 2005) 13. Eric Barendt is Professor of Media law, teaching media law,
constitutional law, and civil liberties on the university at University College, London. He writes in the area of media
law, including broadcasting law, freedom of speech and is published widely.
31
Barendt, Freedom of speech, 18.
32
Corlett, J. A., &Francescotti, R. (2002). Foundations of a theory of hate speech. Wayne L. Rev., 48, 1071.
33
R, Simpson ‘Dignity, Harm and Hate Speech.’ Law and Philosophy: An International Journal for Jurisprudence
and Legal Philosophy, (November 01, 2013) 32, 6, 701-28.
34
Regina v. Butler, 89 D.L.R. 4th 449 (Can. 1992) (upholdinga n antipornographyla w in face of objection that it
limited speech protected by the Canadian charter); Regina v. Keegstra, 3 S.C.R. 697 (Can. 1990) (upholding a
federal hate speech law against allegation that it impermissibly limited speech). In these decisions, the Canadian
Supreme Court applied a harm-based rationale to uphold laws restricting both pornography and hate speech.
35
Wisconsin v. Mitchell, 113 S. Ct. 2194, 2196 (1993) (upholding enhanced penalty for battery when defendant
selected victim based on hate of a specific race).

9
To further understand the legal realities of hate speech legislation in Kenya, a theory of

libertarianism36is central to this study. Libertarianism refers to a normative political theory that

gives top priority to the value of freedom of choice over other competing political values.37Notions

and actions are uninhibited without moral restrictions but are not distinct from the societal ideal.38

Libertarianism therefore endorses free expression but at the same time appreciates a basis for

restraint 39

Historic, and of significance; numerous libertarians unearth their roots back to the pioneering

publications40 of John Locke. Locke reckoned that the government did not give rights, it just

defended them hence it cannot dictate norms. Thus, when more broadly applied, it provides a

philosophic foundation for free speech and for the freedom of action that follows from free

thought.41

Consequently the libertarianism of Locke; suggests that in order to protect private property

limitations of freedoms would not be an act of extinguishing those rights but on the contrary favor

them to weightier considerations.42

36
Barry, N. P. (1986). On classical liberalism and libertarianism. Palgrave Schol, Print UK.
37
Roderick T.Long; ‘’Immanent Liberism; The Politics of Mutual Consent, “ social philosophy and policy, vol.12,
no.2 (summer 1995) p, n. 26
38
McDougal &Littell n 35 516.
39
Smith Freedom of Expression and Partisan Politics (1989) 10.
40
In particular his Second Treatise on Government (1689) edited by C. B. Macpherson., a founding text of
liberalism.
41
John Locke "A Letter Concerning Toleration" (1689) and "The Second Treatise On Civil Government" (1690)
(Accessed 12th November 2015)
42
Binswanger, HarryJohn Locke's Political Philosophy, Oceanside: Second Renaissance, 1991

10
Professor Ian Cram backs this libertarianism perspective by linking the connection between rights

and pointing to the fact that the freedom of expression cannot be viewed as an unequaled, supreme

liberty that trumps all other rights. Libertarianism consequently affirms that hate speech ought to

be restricted. 43

1.8 LITERATURE REVIEW

The debate over hate speech has spawned a rich body of scholarly literature. Samuel Walker in his

book44 labors to define hate speech. He first acknowledges that the term hate speech has no

universally agreed on definition on hate speech. Traditionally he asserts that hate speech

constitutes “any form of expression deemed offensive to any racial, religious, ethnic or national

group.” However in defining hate speech he only gives its distinction with hate crimes. Hate crimes

unlike hate speech are “traditional common law criminal acts against person or property rather

than communication”45

Rodney A. Smolla, defines hate speech46 as “the generic term that has come to embrace the use of

speech attacks based on race ethnicity, religion sexual orientation or preference” Rodney seeks to

use the harm principle to define the types of injuries that qualify to rationalize limiting of hate

speech. The possible harm caused by hate speech has been categorized by Rodney into three;

physical harm, relational harm and reactive harm47

43
Wellington, H. H. (1979). On freedom of expression.Yale Law Journal, 1105-1142.
44
Walker, S. (1994). Hate speech: The history of an American controversy. U of Nebraska Press at page 8
45
Walker, S. (1994). Hate speech: The history of an American controversy. U of Nebraska Press at page 9
46
Smolla, R. A. (1990). Academic freedom, hate speech, and the idea of a university.Law and Contemporary
Problems, 195-225.
47
http://doi.org/10.2307/1191797 (Accessed 16th November 2015)

11
Jeremy Waldorn has contributed significantly in this discourse. In his book48, he highlights a

twofold points of reference in which hate speech can be well thought out as an elementary

hindrance to society. According to him, communal tolerance and forbearance is ‘a public good’

and that societal inclusiveness ought to be promoted and encouraged as a salient thread in weaving

the social fabric of peace and harmony. Waldorn robustly asserts that as individuals conduct their

life on a day to day basis, every cluster or set of individuals should accept that society is; ‘‘not just

for them; but it is for them too, along with all of others. And each person, each member of each

group, should be able to go about his or her business, with the assurance that there will be no need

to face hostility, violence, discrimination, or exclusion by others’’

These are the ingredients, according to Waldorn that are the hallmark of a society that treasures

dignity and equality to mankind. Hate speech then destabilizes this public good; ‘it does this not

only by intimidating discrimination and violence, but by reawakening living nightmares of what

society was like – or what other societies have been like – in the past.’ Unknown to the indolent,

hate speech gradually but steadily acts as venom that erodes the ‘public good’ phenomena and

henceforth effectively undermines ‘inclusiveness’.

However his work as even stated by himself offers a characterization of hate speech as found in

advanced democracies and in Europe49 Pillay and Azriel further contend in their publication that

hateful speech undermines the principles of diversity and pluralism by passing on a point that

particular members of a society are inferior50.

48
Waldron, J. (2012). The harm in hate speech.Harvard University Press.
49
Waldron, J. (2012). The harm in hate speech. Harvard University Press at page 12.
50
Karmini Pillay, Joshua Azriel “ Banning hate speech from public discourse in Canada and South Africa: A legal
analysis of both countries constitutional court and human rights Institutions’ (2012) Vol 7, S A Public Law Journal

12
Professor Jacqueline R. Kanovitz51 provides the following definition:

“that speech that denigrates, belittles, or expresses contempt for others because of their

race, ethnic origin, color, religion, sexual orientation or other personal characteristics that

makes one vulnerable…”

Professor Jacqueline R. asserts that a society where the state lacks the capacity to limit free speech

whatsoever the circumstances would result in a state of anarchy52. The professor however

advocates for permitting of unlimited articulation of thoughts that she believes reveals the ultimate

truth53. She posits that if unkind words54 or threats are used then such extremes should face a total

ban to safeguard the community

1.9 RESEARCH METHODOLOGY

This study relies on a non-empirical intensive literature search, review, and fusion of all relevant

knowledgeable literary works on hate speech. My study draws on a three-fold design approach:

close textual and reading scrutiny of primary source material; legal contextualization of both

primary documents and broader socio-cultural framework through the review of articles, books,

case laws, international human rights instruments and journals.

51
JR Kanovitz, Constitutional Law (2010) 64-65. 12th ed
52
JR Kanovitz, Constitutional Law 12th ed (2010) 45; The state may give limitations upon which one can exercise
his or her freedom of expression without infringing the rights of another individual; Kovacs v Cooper 336 US (1949)
69 S. Ct 448
53
Barry v Boos 485 US S.Ct 1157 (988) where it was stated that citizens must tolerate insulting and even outrageous
speech in order to provide adequate breathing space for freedoms protected by the First Amendment.
54
‘Words used purely to inflict injury’ as noted in Terminiello v Chicago 337 US S.Ct 894 (1949).

13
1.10 SCOPE OF THE STUDY

This study covers the legal framework governing hate speech in Kenya and an analysis of its

effectiveness in ensuring efficient levels of investigative, prosecutorial and conviction functions

of the relevant authorities. It focuses primarily on the hate speech impacts on society and the

various proposals that have been put forward to regulate hate speech laws.

Although special consideration to case laws is given, I am more concerned with the context from

which they arose. This is because an approach that majors on case law is limiting as a vast number

of ate speech are never adjudged in a court of law in Kenya. It will specifically discuss the

challenges facing the delivery of these functions while at the same time making special reference

to the right of citizens to a fair trial.

After making an extensive comparative study to foreign approaches to hate speech from countries

like Germany, United States and Rwanda, the study will proceed to formulate recommendations

to the existing threats.

14
 CHAPTER TWO:

LEGAL FRAMEWORK OUTLAWING HATE SPEECH IN KENYA

2.1 INTRODUCTION

In the era that preceded the National Cohesion and Integration Act55 legislation, the entire of the

Kenyan criminal legal framework lacked a definite and direct reference of the term ‘hate speech’.

The only provision that came close was the penal code that criminalized actions that were intended

to cause feelings of hate or stimulated enmity or discrimination between different communities or

races within Kenyan communities.56

Conversely, the 1963 repealed Constitution of Kenya also lacked a clear provision that prohibited

hate speech. Just as the Penal Code; Article 8257 came close enough to the concept of Hate Speech

by outlawing discrimination on basis of nationality, political opinion, sex color, tribe and race.

Discrimination in this perspective represented and denoted the preferential treatment of individuals

on basis of the above mentioned grounds.

From the foregoing it’s crystal clear that Kenya lacked a distinct and specific legal provision that

prohibited neither hate speech nor imposed an obligation on the state to curb it. A report by the

Waki Commission58 and the Kenya National Commission on Human Rights (KNCHR) asserted

that the post-election violence of 2007-2008 was invigorate and motivated by hate speech

utterances.59

55
Act 12 of 2008
56
The Penal Code Cap 63 Laws of Kenya Sec 77.
57
The Constitution of Kenya 1963 Art 82
58
Report by the Commission of Inquiry on Post-Election Violence - CIPEV (Waki Report) (2008) 68-71.
59
KNCHR, ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’
(August 2008)7.

15
2.2 THE CONSTITUTION OF KENYA 2010

The Constitution of Kenya 2010 has sufficiently adopted a fundamental liberties and human rights

approach. In the Bill of Rights60, Article 27 makes a provision that each individual is equal before

the law and that they possess a right to receive equal benefit and protection of the law61.

Furthermore the article denotes that the equality is inclusive of the equal and full enjoyment of all

fundamental freedoms and rights62.

These articles also accommodate the ideology that an individual should not interfere with the rights

of others in the name of enjoying his.63The principle of equality corroborates that of non-

discrimination expressly provided for in Article 27 (5) that makes a prohibition on discrimination

on basis of ethnicity, social origin and race.

However, the main constitutional provision that outlaws hate speech expressly is Article 33 (1).

The article makes provisions for the right of expression that ranges from the right to pursue, obtain,

collect and impart information, the right of creativity in artistry and freedom of scientific research

and academic discourse.

Regardless of this stringent provision, the freedom of expression is limited. It is not an absolute

right. Specifically, clause two restricts this freedom to acts like incitement to violence, propaganda

for war, hate speech or encouragement of hate that involves incitement of ethnic communities,

incitement or defamation of other individuals that results in harming others on the basis of the

discrimination grounds set in article 148.

60
The Constitution of Kenya 2010 Chap. 4; Article 19 on rights and fundamental freedoms.
61
The Constitution of Kenya 2010 Art 27 (1)
62
The Constitution of Kenya 2010 Art 27 (2).
63
In conformity with Mill’s proposition of the harm principle; JS Mill, On Liberty (1859) 21-22; Freedom of Speech"
(17 April 2008) Stanford Encyclopedia of Philosophy.(Retrieved 28 January 2016).

16
Despite the major legal development of hate speech in the new constitution one shortcoming is

clear. The new constitution does not make any attempt to define the term hate speech.

Consequently then, one cannot possibly fully rely solely on the constitution to successfully

institute hate speech proceedings in a court of law.

Therefore it acts as a fundamental norm upon which other statutes derive their validity and legal

authority of prohibiting hate speech. Logically then, the inclusive detailed content and scope of

the law on hate speech is anticipated to be outlined in statutory framework.

2.3 LEGISLATIVE FRAMEWORK

2.31 THE PENAL CODE

The Penal Code64 is a parliamentary legislation that creates a criminal law code. The code forbids

any conspiracy to act or act or utterances that have dissident intentions.65 Such intention inter alia

means and includes acts that are calculated or intended to encourage enmity or feelings of hate

between the various communities and races in Kenya.

If one commits these offences, he or she will be criminally liable to face an imprisonment sentence

for a period that does not exceed of seven years66. Furthermore in section 96, the Penal Code

prohibits any utterance, act, publication or print that is intended to cause physical injury, death or

that jeopardizes the peaceful way of life of any individual, class of community or people. The

offence attracts a jail term punishment that does not exceed five years.

64
Cap 63 Laws of Kenya.
65
Penal Code Sec 77(1).
66
Penal Code sec 77 (3) (e): However, any criticisms and comments made in good faith or intended to remove any
causes of hatred between communities are excluded from the application of the section.

17
One glaring deficiency in this code is the lack of the code specifically demarcating the point at

which an utterance would be said to have encouraged hatred feelings or enmity amongst different

communities. Since feelings vary from an individual to another, subjectively, this failure engulfs

the law on hate speech in a cloud of uncertainty. Unsurprisingly case law points to this deficiency;

in the case of John Ng’ang’a Alias De Mathew; the court went against what both the NCIC and

the general public thought had constituted hate speech.67

2.32 THE NATIONAL COHESION AND INTEGRATION ACT

The National Cohesion and Integration Act came into force in 2008, to promote integration and

cohesion68 through the country by prohibiting discrimination on basis of tribal or ethnicity. Section

13 and 62 explicitly prohibits hate speech in Kenya. Under Section 13, commission of acts that are

intended to create and encourage hatred on basis of ethnicity or that under the circumstances are

likely to cause ethnic hatred is an offence.

Unambiguously the acts anticipated above range from, displaying, distributing or displaying of

any written documents, using abusive, insulting or threatening words, directing or presenting

performance of a play in public, playing, showing or distributing of a recording of graphic images

that are abusive, insulting or threatening.

In order to assess if an act of ethnic hatred qualifies to be termed as hate speech, the Act describes

the phrase ethnic hatred as hatred against a group of people distinguishable by color, race, ethnic

origins or nationality.69

67
Court Acquits Musician De Mathew over Anti Raila Song’ Daily Nation (Kenya, Nairobi) 20 June 2014
68
National Cohesion & Integration Act 12 of 2008 Preamble.
69
National Cohesion & Integration Act Sec 13 (3)

18
If one perpetrates this offence, he or she attracts a jail term not exceeding three years or a fine of

up to one million shilling or both. In addition, the Act prohibits the crime of racial or ethnic

contempt. Section 62(1) renders it illegal to make utterances that have an objective to encourage

feelings of hostility, hatred, contempt, discrimination or violence against another individual,

community or group on the grounds of race or ethnicity.

Utterances and publication of documents that have the probability of enhancing ethnic hatred by

media broadcasting corporations and news lets is outlawed in both Section 62(2) and Section 13.

Despite the Act being more detailed, intricate and highly crafted, it equally has its own share of

limitations. For instance it does not clearly define the boarders within which digitalized media

operate to avoid furthering hate speech during reporting of such utterances.70

In an effort to respond to this inadequacy the NCIC has come up with premeditated guidelines and

procedures that aid in identifying speech that may be regarded to constitute hate speech. However,

like any other non-statutory guidelines; they do not bind decisions of the court. Until they are

merged into statutes, they will continue being just an academic lighthouse whose only probative

value is persuasiveness.

70
Why Hate Speech Law Craves a Fresh Breath’ The Standard (Kenya, Nairobi) 28 June 2014 Accessed 19th October
2014 at http://www.standardmedia.co.ke/Article/2000126312/why-hate-speech-law-craves-a-fresh-breath/; M
Odongo, Unpacking Hate Speech. Accessed on 3 February 2015 at http://www.cohesion.or.ke/news-all/144
unpacking-hate-speech-by-commissioner-milly-odongo.html

19
2.33 THE MEDIA ACT 3 OF 2007

The Waki report71 made findings that the media, both television and radio stations especially the

vernacular ones72 played a key function of inciting hate utterances just before and during the 2007

elections. Section 2 of the Media Act defines media to include both print media and electronic

involved in any production for dissemination to the general public. Nonetheless it is important to

note that this does not include the publishing of books.

Hate speech forms the bulk of what this act seeks to curb. Therefore in the Second Schedule for

instance we have a myriad of codes of conduct that journalists ought to observe. Specifically

regulation number 25 clearly stipulates and makes illegal the offering airtime to an individual that

makes disparaging and offensive utterances grounded on creed, color, sex and ethnicity. Therefore

the Act seeks to bring sanity back to the media corporations where the stakeholders play a crucial

role of fostering peace, cohesion and integration.

However this regulation is not clear cut and its implementation is not easy. Critically, this scenario

comes to play due to the competing interests of the media’s freedom to conduct their operations

without being interfered with by the state. Another competing factor is the constitutional right of

the General public to acquire information.

71
Report by the Commission of Inquiry on Post-Election Violence - CIPEV (Waki Report) (2008) 68-71.
72
KNCHR, ‘On the Brink of the Precipice: A Human Rights Account of Kenya’s Post -2007 Election Violence’
(August 2008).

20
2.34 KENYA INFORMATION AND COMMUNICATIONS ACT

The Kenya Information and Communication Act of Kenya is a parliamentary act that strives to

control the sector of communication.73 The Act establishes the Communication Authority74 that

is obligated to regulate and license the communication sector. Hate speech is however regulated

by Section 29 (a) and (b) of that act that prohibits the sing of a system of telecommunication that

is licensed to transmit or dispatch indecent or offensive messages that are tailored to cause an

aggravation or provocation to another individual.75

However, a critical insight into the provision reveals that these messages need not be

discriminating on the grounds of ethnicity, race or c color. Such a broad and sweeping provision

renders it inappropriate to characterize acts therein as constituting hate speech.

2.35 THE ELECTIONS ACT

The act came into operation in December 2011 to control the conduct and process of elections.

Section 6776 makes it illegal for an individual to carry out campaigns using insulting, abusive or

threatening language or getting involved in any type of action that may enhance violence and incite

hatred or motivate voters on the basis of gender, ethnicity, religion and race.77

The second schedule of this Act makes a prescribes a code of conduct for all the candidates,

political parties, agents of political parties and leader or any individual engaged in elections at

whatever capacity.78

73
Cap 411A Laws of Kenya Rev 2011.
74
Kenya Information and Communications Act Sec 3.
75
This offence attracts a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three
months, or both
76
Election Act 24 of 2011 Sec 67(1) (g) (i).
77
Commission of the above offence attracts a fine not exceeding five hundred thousand shillings or to imprisonment
for a term not exceeding five years or both
78
Elections Act 24 of 2011 Rule 1.

21
Rule 6 (a) mandates those participating in elections to come out in public and condemn

intimidation and violence. Of great importance is that the act gives the commission the capacity to

impose sanctions and penalties. It also empowers it in cases of gross misconduct to corporate with

the High Court to arraign suspects to court.79 It can be said of critically that the Elections Act is

adequate in prohibition of hate utterances as far as electioneering conduct is concerned due to its

detailed implementation mechanisms.

2.4 INTERNATIONAL STATUTES

2.41 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

The inherent equality and dignity of each person is the basis of international human rights.

Unsurprisingly therefor, international law condemns utterances that negate the equality of all

people. Article 20 (2) of the ICCPR puts a duty on signatory parties to outlaw hate speech. The

article clearly states that any advocacy of racial, religious or national hatred that comprises of

discrimination, violence or hostility shall be outlawed.

It is not debatable that restriction of the freedom of expression on grounds of hate speech can be

justified. However this article 20(2) does not call for states to put a blanket ban on all negative

sentiments towards races, national groups or religions but only after these utterances can be said

to constitute incitement to discrimination violence or hostility.

The UNHCR has presided over numerous cases in the province of hate speech. In J.R.T and W.G.

party vs. Canada, the applicant argued that the court order that prohibited him from operating a

telephone service that was anti-semantic breached his right to expression.

79
Elections Act Rule 7 for example formal warning, a fine, an order partly or absolutely barring utility of any media,
an order prohibiting holding of particular meeting or entering any specified electorate area inter alia against any
political party or any candidate for breach of the code

22
The UNHCR found this application inadmissible since it went against the letter and spirit of Article

20(2). Apart from the ICCPR we have numerous other international instruments Kenya is a

signatory and that have prohibited hate speech. For instance Article 4 of CERD mandates

signatories to declare as a crime capable of being penalized by law all the transmission of

statements based on racial hatred or superiority.

23
 CHAPTER THREE:

COMPARATIVE STUDY OF HATE SPEECH LEGISLATION RWANDA

3.1 A BRIEF HISTORY OF THE RWANDAN GENOCIDE

On 6th April 15, 1994, the plane carrying the president of Rwanda, Habyarimana Juvenal was shot

down. Both the president and other numerous prominent personalities in the Rwandan government

perished in the crash80. Just over three months, the incident triggered the killing of more than

800,000 people most of whom hailed from the minority population of the Tutsi people. The

categorization of the ethnicity and later hostility between the Tutsi and the Hutu developed over

the era of the 20th century and substantially deepened when Belgium commenced their colonial

administration over the country.

Despondently the Belgium supported the domination of the Tutsi minority over the rest of the

ethnic communities in Rwanda81. Subsequently, the Belgians departed from Rwanda. In quick

successions, the Hutus ascended to power and started an often violent expulsion of the Tutsis from

the areas they that before the colonial regime had been predominantly occupied by the Hutus.

Many of the Tutsi, therefore, grew up in refugee camps82.

Hence this led them to form the Rwandan Patriotic Front (RPF) whose primary objective was to

establish a new government using overthrowing President Habyarimana. As early as 1990, the

RPF had crossed borders and were carrying out systematically planned attacks in Rwanda. Ethnic

hatred ran very high and hates speech views were being fueled and propagated by both the print

media and radio.

80
High Council of the Press Strategic plan 2008 – 2012 Media High Council
81
9 The Prosecutor v. Nahimana (Judgement) [2003] iv.
82
Enrique Armijo “Building open societies: Freedom of Press in Jordan and Rwanda” (2008) 2 Int’l Media & Ent.
L. 105, 122.

24
In 1994, as efforts to execute an agreement of peace slowly failed a wave of violence set in after

the execution of the president83. Therefore hate speech played a key role in Rwanda’s 1994

genocide. Therefore, this is the context in which hate speech is restricted in Rwanda.

3.2 RWANDA’S APPROACH

The government of Rwanda has actively limited hate speech, specifically concerning the ethnic

tension and genocide supporting their case with some concerns that are legitimate for justifying

the restriction of hate speech84. The state possesses a history of the media being significantly

involved in crimes of violent hate speech such as Kangura and RTLM. On several instances, it has

been the view of the government that they would like to allow as much liberty of speech as possible

but is afraid of the close hovering forces that generated the genocide that exists in the Democratic

Republic of Congo.

The ICTR also recognized the significance and severity linked with genocide connected hate

speech in Rwanda in its Media Case ruling. Rwanda's genocide system of legislations is too

overbroad and vague, and the government has been condemned for manipulating it against its

citizen that possess dissenting opinions. Moreover, the Human Rights Watch (HRW) has found

that in Rwanda, the existing definition of hate speech is too imprecise and does not need any

connection to any act of genocide, and forbids speech that the international conventions have

protected85. While ensuring protection against prospective volatile hate speech, the law is too

imprecise and is open to manipulation to preserve valid diverse expression and legitimate opinions.

83
Despite all this however, Tutsi were now safe for the first time in almost fifteen years and for the next fifteen years,
Rwanda experienced some peace and stability
84
L.J. van den Herik Contribution of the Rwanda Tribunal to the Development of International Law (MartinusNijhoff
Publishers, Leiden, 2005
85
The Prosecutor v. Akayesu (Judgement) [1998] 47

25
3.3 A “MUZZLED AND ATROPHIED” MEDIA

Little has been altered regarding the freedom of the media since the atrocities of the genocide were

committed. Still skeptical of the role of the media in the genocide, "an ever more authoritarian

regime controlled by the Rwandan Patriotic Front remains to justify propaganda and censorship as

a required precaution against the reoccurrence of the genocide."

Under the present system, columnists, and broadcasters that do not obey and tow the government

line are persistently physically assaulted, forced into exile, discredited, intimidated or wrongly

arrested86. Moreover, the journalist faces legal persecution where the journalists are prosecuted for

contempt of the President, criminal defamation, divisionism, genocide ideology, and

discrimination87. Persistent abuse of the media has led to columnists and members of the press to

practice self-censorship due to the dread and worry of reprisals from the government.

Furthermore, the government suppresses the freedom of speech in general by restricting access to

information, monitoring communication, forcing nongovernment papers to carry their printing in

foreign countries and compelling corporations not to make their advertisement in independent

local dailies and newspapers88.

In limiting the freedom of speech, the government has also ordered the private media not to focus

on the government's actions but instead to focus on entertaining the citizens. Not only has the local

media been affected in this approach to limit speech but also the foreign media.

86
Amnesty International Amnesty International (AI) Report 2008: Rwanda (2008) Amnesty International
87
Gerard Prunier The Rwanda Crisis: History of a Genocide (Columbia University Press, New York,1995), 6
88
International Crisis Group (ICG) Rwanda at the End of the Transition: A Necessary Political Liberalisation (2002)
UNHCR Refworld

26
For instance, in November 2006, a French radio station, Radio France International was closed

down as a response to the warrants of arrest against President Kagame and his friends that were

issued by a French Judge. The ruling was under their role in shooting down of the plane carrying

President Habyarimana.

On April 15, 2009, the British Broadcasting Corporation's Kinyarwanda Radio Service was

suspended. Specifically, this was owing to the expectation of a program by the BBC that dealt with

forgiveness and freedom of speech in the post-genocide era89. The program featured former

presidential hopeful Twagiramungu Faustian that opposed the government attempt to have all the

Hutus apologize for the genocide. The Rwandan minister termed the program "unacceptable

speech" and a "blatant denial of the 1994 genocide against the Rwanda's Tutsi."

3.4 LAWS RESTRICTING SPEECH IN RWANDA

The suppression of speech in Rwanda has been effected through a sequence of laws that regulate

the freedom of the media. The constitution of Rwanda states90 that:

“the freedom of information and the freedom of the press are guaranteed and recognized

by the state”

However, this is qualified by a provision that says that; freedom of information and freedom of

speech shall not prejudice good morals and public order, good reputation, the privacy of family

life and personal life and the right of every citizen to honor91.

89
0 Human Rights Watch Rwanda: Restore BBC to the Air Human Rights Watch (2009)
90
Constitution of the Republic of Rwanda 2003 (Rwanda), art 34.
91
Monahan, J & Walker, L ‘Social Authority: Obtaining, Evaluating and establishing social science in Law’ (1986)
134 University of Pennsylvania Law Review

27
Moreover, hate speech is guaranteed so long as it is not prejudicial to the protection of the minors

and the youth and that such freedoms shall only be exercised as far as statutes are determined.

Other laws that restrict the freedom to a free speech include;

3.41THE PRESS LAW

Under Article 10 of that law, it provides that "the press is free" however, it goes forth to state that

“Freedom to express one’s views through the Rwandan press is to take place within the

statutory provisions.”

The second part of this law provides for a procedure of establishing a television or a radio station

and press publication. Such registration is subject to governmental approval. In practice therefore

the government makes the registration of private media outlets more cumbersome and close to

impossible also, part four contains some criminal offenses under Article 83; it is an offense for the

media to incite an individual to execute a crime.

Under Article 84, it is a crime to publish news that are false or that jeopardizes public decency or

public order, defames public authorities or holds the President in contempt92. The preceding crimes

can invite a maximum criminal sentence. The law also provides for the remanding in custody of

the journalists before being arraigned in court if they excuse genocide or make speeches that incite

crimes.

92
Law No. 18/2002 Governing the Press 2002, above n 291, art 65 and art 67.

28
3.42 THE DIVISIONISM LAW

Under this law, any person can be prosecuted for crimes of hate speech, commonly referred to as

discrimination crimes. The Divisionism Law defines discrimination in Article 3 as; “any speech,

action or writing based on country of origin, sex, language, ideas, religion, ethnicity, region, color

of the skin or physical attributes aimed at robbing a group of persons or a person his right as

provided by International Treaties to which Rwanda is a party or by Rwandan statutes.”93

In principle and spirit hate speech is equated to any debate of Rwandans regarding Tutsis and

Hutus with the secessionist ideology that led to the genocide. Hate speech, as coined divisionism

has been defined broadly as “The use of any speech, written statement or action that divides people,

that is likely to spark conflicts among people, or that causes an uprising which might decrease into

strife among people based on discrimination…”

If any individual carries out either of these offenses, it can be under Article 8 punished. The article

provides that: "Any person who makes public any speech, writing, pictures or images or any

symbols over radio airwaves, television, in a meeting or public place, with the aim of

discriminating people or sowing sectarianism among them is sentenced to between one year and

five years of imprisonment and fined between five hundred thousand (500,000) [US$ 1000] and

two million (2,000,000) [US$4,000] Rwandan Francs or only one of these two sanctions.

93
Law No. 47/2001 On Prevention, Suppression and Punishment of the Crime of Discrimination and Sectarianism
2002 (Rwanda), art 3.

29
The definition of hate speech in Rwanda has been labeled as imprecise and susceptible to abuse

and manipulation94. Even judges who had sentenced a defendant to jail for hate speech were unable

to define hate speech when the researchers of the Human Rights Watch asked them to do so95.

While no judicial precedent exists that clarifies the scope of the crime, it seems that it is broadly

interpreted to mean any arrangement of the opposition of the present government

3.43 THE GENOCIDE IDEOLOGY LAW

The new law was introduced on 1st October 2008 on ‘genocide ideology' that seeks to limit the

freedom of speech. The criteria of the genocide crime as set out in Article 3 of the new law, states

that; the genocide ideology evil is demonstrated in any behavior characterized by evidence

intended at depriving a group or a person of common interest of humanity like in the following

ways96. Degrade, despise, defame, mock, marginalize, laugh at one’s misfortune or create

confusion that is geared at negating the genocide that took place, taking revenge, altering evidence

or testimony for the genocide that took place97.

Just like the divisionism crime, the provisions of the new law are ambiguous and vague. The

statute’s prohibition of genocide is so generally drawn that it could be manipulated to prosecute

and convict individuals for any speech they make. Surprisingly, the punishments for the offense

are even more punitive than those for divisionism crime.

94
Immigration and Refugee Board of Canada Rwanda: Legislation governing divisionism and its impact on political
parties, the media, civil society and individuals (2004 - June 2007) (2007) UNHCR
95
Legislation governing divisionism and its impact on political parties, the media, civil society and individuals
96
Amnesty International Amnesty International (AI) Report 2009: Rwanda (2009) Amnesty International
97
Constitution of the Republic of Rwanda 2003, above n 287, art 13.

30
First-time convicts are fined 200,000 to 1,000,000 Rwandan Francs and imprisoned to a jail term

of between 10 to 25 years in prison98. For re-offenders, the prison sentence could be increased to

a life imprisonment, with the fine being doubled.

98
Law and Reality: Progress in Judicial Reform in Rwanda

31
 CHAPTER FOUR:

CONCLUSION AND RECOMMENDATION

4.1 CONCLUSION

Hate speech has the potential to result in adverse injuries to people. It crushes the spirit of innocent

individuals. Moreover, hate speech injures their sense of self-worth and dignity. It negatively

impacts the communal welfare of the citizens by encouraging a regime of violence and

discrimination as well as disintegrating the fabrics of social harmony. Additionally hate speech

cultivates hatred that incubates an antagonistic environment for a specific tribe or a specific portion

of the political divide among the society. Consequently; such atmosphere in itself acts as a

stumbling block to socioeconomic prosperity and attainment of nationalistic aspirations of a

country as a whole.

Hard-hitting lessons of these disastrous effects of hate speech, as has been shown in this study are

ample both within borders and in our close neighbors. For instance, the bloodshed that was

exhibited in the Kenyan post-election violence and the Rwanda genocide are constant reminders

of the harsh realities of the fatal consequences of an unregulated speech that spills over to hate

speech.

From the study, the controversial and critical concepts have been brought to light. In doing so, it

is clear that in international law, statutes, declarations or in international customary law there lacks

a conventionally, unanimously recognized definition of the term hate speech. In fact, neither the

scope nor the content of hate speech can be authoritatively held to bind all the states. On the

contrary, each country has contextualized their laws on hate speech to fit the diverse, distinct

history and unique circumstances of the social history of its people.

32
Clearly then, it is less striking that despite the development of other facets of legislative

frameworks, the essentials of hate speech are still disputed. As a result, the discussion on the line

between upholding of the right to free speech and the need to restrict speech when it borders hate

speech is one of the most pressing intellectual legal discourse of our times that has attracted an

unprecedented amount of scholarly converse.

A quick flashback on the earlier discussion on the legal framework of this study reveals that

notwithstanding numerous statutes prohibiting hate speech in Kenya, the legal stipulations are not

comprehensive and do not offer a workable, practical and a precise implementation policy.

Considering the urgent need to regulate free speech, this study articulates the necessity of the

statutes to be exhaustively and coherently drafted to eradicate cases of ambiguity or duplicity.

Based on these deductions, it can be deductively premised that even the National Cohesion and

Integration Act does not offer clear cut parameters within which hate speech can be conventionally

claimed to operate.

Furthermore, this study challenges the idea that reconciliation, as set out in the National Cohesion

and Integration Act is effective in preventing individuals from the propagation of hate speech. As

expressed by this study a hate speech law offender is highly probable of repeating the same offense

just after the act of reconciliation rather than after serving a fine, or after being convicted to a jail

sentence. Subsequently, this leads us to a complimentary recommendation this study seeks to

adopt, that is, the declaration of hate speech to be an exclusively criminal offense with penal

sanctions and closing all avenues that partially renders some forms of hate speech to be treated as

a civil matter.

33
Moreover, the study reveals that the NCIC role of investigation and recommendations on every

issue of hate speech can only be performed in the capacity of either being an interested party in a

case, reconciling parties or acting as an advisor. As a consequence of this limitation the study

makes a conclusion that the effectiveness of the NCIC would be more guaranteed if it possessed

powers of prosecution and therefore having the capacity to be involved directly in prosecution of

hate speech cases.

Furthermore, the study recognized ethnic hatred to be the primary cause of hate speech. Therefore,

investigation, prosecution and conviction of perpetrators would not solely be a long term solution.

The preceding is the case since they tackle the disease of hate speech and not its symptoms. To

mitigate hate speech effectively and efficiently, the study proposes that training and educational

programs ought to be established in areas that are vulnerable in so as to enhance harmony, public

conception of peace and to enhance good communal co-existence relations.

Lastly with a keen analysis of the Rwanda's legislative approach revealed that the history and

unusual circumstance created by unfortunate events like the Genocide informed the tone of their

legislation. Unsurprisingly, therefore, their statutes that govern hate speech are stringent,

overboard and confer sweeping powers to the government and its administration departments. Be

it as it may be in Rwanda, the study is of the opinion that if such a regime of the legislative

framework was to be adopted in Kenya, history and logic informs that the government would

exploit it to limit speech that is legitimate.

34
Hence, the study comes to a conclusion that Kenya needs to copy valuable legal provisions from

the Rwandan jurisdiction that would effectively curb hate speech without necessarily hurting the

citizen’s constitutional right to speech. A middle ground of stringent and too liberal ought to be

struck.

4.2 RECOMMENDATION

From the foregoing conclusion, the study makes several recommendations.

The first recommendation is that the legislative regime governing hate speech in Kenya such as

the NCIC Act ought to be amended to respond to the economic, social, historical and cultural

factors of hate speech that led to the 2007 post-election violence99. Evidently this could go a long

way in aiding the laws to have a broader impact and as well make it easier for the citizens to

associate with and obey those laws

Secondly, the National Cohesion and Integration Act ought to be specifically amended to

comprehensively provide for parameters where the determination of hate speech can occur. The

act should come out emphatically and authoritatively in settling the border between what

constitutes hate speech and what can be considered legitimate speech. Such a move would go a

long way to offer guidance to the investigating authorities, prosecutors and tribunals in managing

cases of hate speech. Furthermore, the act should assert itself clearly on the issue of if

conversations made in private can be considered to be a form of hate speech.

99
Barendt, M (1985) Freedom of speech Oxford University Press

35
In this regard, the study makes a recommendation that legislators ought to prepare and include

comprehensive guidelines on hate speech, which would be annexed in the NCIC act as a Fourth

Schedule Addendum. As of today, the guidelines governing the NCIC are contained in a book and

are absurdly of no binding character to any judicial forum.

The third recommendation is that the NCIC Act must be amended so as to expressly accord

prosecutorial powers to the NCIC. Indisputably, such an amendment would ensure that the NCIC,

after carrying out investigations and making recommendations, can now act on them through the

institution of prosecutions against suspect offenders. Moreover, this would guarantee that the

custodians of primary research data and information are skillful, directly and actively involved in

the process of prosecution.

Fourthly, the practice of reconciliation as expounded by the NCIC act ought to be reconsidered.

Hate speech is intrinsically a criminal offense. It is a wrong against the state and therefore the

perpetrators have to face criminal sanctions while the victims should be awarded civil remedies.

To purport that reconciliation is a separate entity that can only function through mere non-judicious

forgiveness of offenders is to disregard the same role reconciliation is tailored to perform100.

As a fifth recommendation, legislators in the National Assembly and Senate should make a heftier

budgetary allocation to the NCIC. Such an allocation would then finance promotion of training

and educational programs that are geared at the advancement of harmony, peace and good relations

among the multiple ethnic communities of Kenya101.

100
Post, R (1995) Constitutional Domains: Democracy and Community Management (1995) Harvard University Press
101
Waldron, J (2012) The harm in hate speech Cambridge, Harvard University Press.

36
About online hate speech, online anonymity, and brand jacking, the study recommends that the

government should create a special investigative department that has the technical competency to

detect such crimes. Moreover, it has to facilitate training schemes to its cyber-crime detective's o

increase their capacity to handle these crimes. Finally, regular and consistent programs of training

investigators should be rolled out to ensure that the investigators are abreast with the dynamic

nature of the ever-changing trends in technology.

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 BIBLIOGRAPHY

BOOKS AND CHAPTER ARTICLES

1. Alison, DF (1999) Leave None to Tell the Story: Genocide in Rwanda New York: Human
Rights Watch.

2. Barendt, M (1985) Freedom of speech Oxford University Press.

3. Bytwerk, L (2001) Julius Streicher: Nazi Editor of the Notorious Anti-Semitic Newspaper, Der
Stürmer.New York: Cooper Square Press.

4. Benesch, S (2013) ‘Song as a Crime against Humanity: The First International Prosecution of
a Pop Star’ in Henry F & Stacey M, Trials (Eds) Trials and Tribulations of International
Prosecution. (2013) Levington Books.

5. Matsuda, J; Charles, R; Richard, D &Kimberle W (1993) Words That Wound: Critical Race
Theory, Assaultive Speech, and the First Amendment. Bolder Westview Press.

6. Post, R (1995) Constitutional Domains: Democracy and Community Management (1995)

Harvard University Press.

7. Spencer, H (1851) Social statics London: Chapman.

8. Nocklebly J ‘Hate Speech’ in Levy, et al (eds) Encyclopedia of the American Constitution

(2000) New York.

9. Waldron, J (2012) The harm in hate speech Cambridge, Harvard University Press.

10. Guttenplan, D (2001) The Holocaust on Trial New York: W. W. Norton.

38
11. Smolla, RA (1993) Free Speech in an Open Society New York: Vintage Books.

12. Bytwerk, L (2001) Julius Streicher: Nazi Editor of the Notorious Anti-Semitic Newspaper, Der
Stürmer.New York: Cooper Square Press.

13. Nussbaum, M (1988) Nature, function and capability: Aristotle on political distribution.
Oxford Studies in Ancient Philosophy.

14. Sen, A (1992) Inequality Reexamined. Cambridge: Harvard University Press.

15. Tsesis, A (2002) Destructive Messages: How Hate Speech Paves the Way to Harmful Social
Movements New York: New York University Press

REPORTS AND PAPERS

1. Kenya National Commission on Human Rights ‘Referendum Report’ (2005).

2. Kenya National Commission on Human Rights ‘On the Brink of the Precipice: A Human
Rights Account of Kenya’s Post -2007 Election Violence’ (August 2008).

3. Report by the Commission of Inquiry on Post-Election Violence - CIPEV (Waki Report)

(2008).

4. Communications Authority, ‘Sector Statistics Report’ (2007).

5. Amnesty International ‘Unsafe to Speak Out: Restrictions on Freedom of Expression in

Rwanda’ (June 2011).

6. MainaKiai, ‘Speech, Power and Violence: Hate Speech and the Political Crisis in Kenya’.

39
7. Bruce-Lockhart K, ‘When does hate speech become dangerous speech? Consider Kenya and
Rwanda’ (2013).

8. National Commission and Integration Commission, ‘Guidelines for Monitoring Hate Speech’
(2010).

9. Communications Authority, ‘Sector Statistics Report’ (July 2014 - September 2015).

10. National Commission and Integration Commission, ‘Annual Report’ (2011-2012)

JOURNAL ARTICLES

1. Strauss, D & Scanlon ‘Persuasion, Autonomy and Freedom of Expression 91 Columbia’

(1991) Law Review 334.

2. Raha T, “Obscene speech and the principle of permissible Harm: Article 10 ECHR”.

3. Simpson, M, ‘Dignity, Harm and Hate Speech’ Law and Philosophy: An International Journal
for Jurisprudence and Legal Philosophy.

4. Gaudreault, J ‘From Sisyphus’s Dilemma to Sisyphus’s Duty? A Meditation on the Regulation

of Hate Propaganda in Relation to Hate Crimes and Genocide’ (2000) McGill Law Journal 46.

5. Monahan, J & Walker, L ‘Social Authority: Obtaining, Evaluating and establishing social
science in Law’ (1986) 134 University of Pennsylvania Law Review.

6. Matsuda, MJ ‘Public response to racist speech: Considering the victim's story’ (1 January
1989) Michigan Law Review 87

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NEWSPAPER ARTICLES

1. ‘Gatundu South Mp Moses Kuria to Appear in Court over Hate Speech charges’ Standard
Digital (Kenya, Nairobi) 15 January 2015.

2. ‘Court Bars Moses Kuria from Making Remarks Over the Mandera Terror Attack’ Daily
Nation (Kenya, Nairobi) 26 November 2014.

3. ‘Outrage as Moses Kuria Makes Another Hate Remark’ Daily Nation (Kenya, Nairobi) 13th
January 2015.

4. Hitler's Private Library’ New York Sunday (United States, New York) 24 September 2008).

5. ‘Why Hate Speech Law Craves a Fresh Breath’ The Standard (Kenya, Nairobi) 28 June 2014

INTERNET SOURCES

1. Neier, A ‘The Future of Free Speech’ (2013) Free Speech Debate

http://www.freespeechdebate.ox.ac.uk/ (Accessed 05 January 2016).

2. Bryant, J ‘Two theories of Free Speech http://www.thebirdman.org/Index/Lbl/Lbl

TwoTheoriesOfFreeSpeech.html (Accessed 14 January 2016).

3. Alison Des Forges Leave None to Tell the Story Human Rights Watch
http://www.hrw.org/legacy/reports/1999/rwanda (at 2 April 2016).

4. UN ICTR About the Tribunal: General Information UN ICTR

http://ictr.org/default.htm(Accessed at 2 April 2016)

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