Introduction

It has been the crux of many jurisprudential inquiries the world over as to the concise
legal conception of hate speech and its disputation with freedom of speech provisions in
human rights laws in various democratic constitutions. Jurisprudence on the clashing of
these two aspects and how to deal with it is lacking and thus leads to ineffective
enforcement of the principles at hand. It is necessary, therefore, to analyse the various
formulations of hate speech and freedom of speech law across the international
spectrum, commencing, of course, within the scope of Kenya, and to attempt to find a
reasonable understanding of the acceptable enforcement of the laws on hate speech.

Background

The concept of the freedom of speech and expression, before it gained traction as a
legal norm and a prerequisite for Bill of Rights charters the world over, is thought to
have originated from the roots of Athenian democracy in the 6th century BC 1.

Great thinkers of the 15th century such as Erasmus2 and John Milton3 propagated the
concept. Milton, in his polemic pamphlet published in 1644, passionately opposed the
restrictions on the freedom of the press and argued that other societies (Greece and
Rome), did not cower under censorship laws but thrived regardless. Such laws were
held to repress societal discourse and debate 4.

Over time the idea gained legal bearing as legal systems developed. This is espoused
in the Declaration of the Rights of Man5, and later in the First Amendment of the US Bill
of Rights6 championed by James Madison7.

It is fully established internationally under article 19 of the Universal Declaration of

Human Rights8.

1
—<https://www.britannica.com/biography/Socrates/The-Athenian-ideal-of-free-speech> on 13 March 2023
2
Erasmus D, The Education of a Christian Prince, 1532.
3
Milton J, Areopagitica, 1644.
4
Milton J, Areopagitica, 1644.
5
Article 11, The Declaration of the Rights of Man (1789).
6
Amendment I, The United States Constitution (1788).
7
Rudanko J, ‘James Madison: The Father of Freedom of Speech’ in Fallacies and Free Speech¸ Palgrave Macmillan,
2021, 99.
8
UNGA, Article 19, Universal Declaration of Human Rights, UN A/Res/217A(III) (10 December 1948).
There has, however, existed a conundrum that rose in unison with the rise of freedom of
expression laws. Limitations. Enjoyment of the ‘unabridged’ right to freedom of
expression extends a bar on the enjoyment of other rights by other members of society 9.

In the era of globalization, a stiff antagonism has arisen within the interaction between
civilizations (cultures), thus impacting the gravity with which rights are respected
universally10.

A simplistic glance at the Universal Declaration of Human Rights will impart the wisdom
of a universally protected right to freedom of opinion and expression. A more
investigative analysis into the roots of this 1948 charter would delve into its drafting
history, and the extensive discourse undergone on the substance of hate speech, and
whether provisions can be included to curb its propagation 11.

Most of this debate was initiated by the Soviet Union and her allies. The United
Kingdom contributed ideas on limitations based on advocacy for hatred and violence,
but the Soviet Union turned this down, seemingly desirous of a more radical limitation;
vivid demonstration of their disingenuous aim of exploiting such limitations to the
detriment of its populace12.

The International Covenant on Civil and Political Rights, a more legally binding
convention, set out a right to freedom of expression in Article 19 13, but subsequently
affirmed a bar on hate speech in Article 20(2) consisting of prohibitions on 'advocacy of
national, racial or religious hatred' that constitutes 'incitement to discrimination, hostility
and violence14.'

Off the face of it, it appears to have tackled the matter sufficiently, providing a less
vague constraint involving a specific requirement for the speech being barred;
'incitement.' However, scholars have argued that considering international differences in

9
Report of Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression,
Economic and Social Council, Commission on Human Rights, Civil and Political Rights, Including the Question of
Freedom of Expression, E/CN.4/2002/75, 5–6, 30 January 2002.
10
Awesta A, Freedom of Expression in a Pluralistic World Order, Eleven International Publishing.
11
—< https://www.hoover.org/research/sordid-origin-hate-speech-laws> on 14 March 2023.
12
—< https://www.hoover.org/research/sordid-origin-hate-speech-laws> on 14 March 2023.
13
Article 19, International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 171.
14
Article 20(2), International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 171.
social convention and exercise of rule of law (weaker in some areas than others), the
requirements for speech that incites discrimination, hostility and violence may have to
be construed on a case-by-case basis, a daunting prospect when it comes to the
protection of human rights15.

This lack of clarity on the nature of hate speech regulation is evident even upon a
surface level analysis of Kenyan jurisprudence. Under article 33 of the Kenyan
Constitution, the freedom of expression has been established 16 subject to internal
limitations barring propaganda for war17, incitement to violence18, hate speech19, and
advocacy of hatred20. The challenge, however, lay in the creation of subsidiary
legislation to boil down what exactly amounted to those limitations. Attempts at this
have found no bearing in Kenyan jurisprudence. Petition No 174 of 2016, Robert Alai v
The Hon Attorney General & another21, decided at The High Court of Nairobi, saw
Section 132 of The Penal Code of Kenya22 declared unconstitutional and invalid. The
section provided for a limitation on the freedom of expression 23 in instances of
expression to undermine the authority of a public officer. Petition No 214 of 2018,
Cyprian Andama v Director of Public Prosecution & another 24, decided at The High
Court of Kenya, saw Section 84(D) of the Kenya Information and Communication Act
declared unconstitutional and invalid. These, together with petition 149 of 2015 25, on the
unconstitutionality of Section 29 of the Kenya Information and Communication Act, and
others have defined the body of scrutiny lain in the maintenance of the freedom of
expression article in the Constitution of Kenya. There is a great lack in decisiveness
when it comes to the legislation and restriction of hate speech events in the country.
Such a lack is evident in the inability of law-making bodies to define clauses that

15
Barth W, ‘Taking “Great Care”: Defining Victims of Hate Speech Targeting Religious Minorities’, 19 Chicago
Journal of International Law 1, 2019.
16
Article 33(1), Constitution of Kenya (2010).
17
Article 33(2)(a), Constitution of Kenya (2010).
18
Article 33(2)(b), Constitution of Kenya (2010).
19
Article 33(2)(c), Constitution of Kenya (2010).
20
Article 33(2)(d), Constitution of Kenya (2010).
21
(2017) eKLR.
22
Section 132, The Penal Code (Chapter 63 of The Laws of Kenya).
23
Article 33, Constitution of Kenya (2010).
24
(2019) eKLR.
25
Geoffrey Andare v Attorney General & 2 others (2016) eKLR.
penalize acts of hate speech while simultaneously ensuring that freedom of expression
is not violated.

Statement of the problem

To determine the root of the issue, it is first necessary for us to analyse what is the ideal
scenario surrounding the subject matter. What would a cloudless society look like in
terms of the capability of its individuals to convey information and ideas? In a fanciful
society, free from the pitfalls of ours, it should necessarily be a guarantee. But our
society, which is all encompassing of diversity and multiculturalism; marred by
inequality, and based on the substratum of a social contract, buckles under the pressure
of multiple societal actors, all possessing the same rights and freedoms, with the
possibility of these rights and freedoms conflicting. A new framework, therefore, must be
designed to accommodate all the actors present in society. All must have the capability
to convey information and ideas as they so desire, but regulations must be placed to
ensure the enjoyment of one’s freedom to convey information and ideas does not result
in negative repercussions on other members of society. This thus breeds the limitations
on individuals’ enjoyment of their freedom of expression.

The issue boils down now, to the incredible difficulty which follows the attempt at
crafting a distinction between one’s freedom to express themselves however they so
wish, and the prevention of negative repercussions on certain members of society
based on speech made by their fellow societal actors. How do you determine where the
red line lies? Is the red line universal? If not, how does a legislature go about
considering contextual factors necessary to draw the line?

Research objectives

a. Determine the foundations of the concept of freedom of expression and the

subsequent ventures to limit hate speech.
b. Discuss the methods utilised by certain jurisdictions towards regulating hate
speech and contrast these with the Kenyan context.
c. Illustrate the balance and distinction that countries have attempted to establish
between free speech and hate speech regulation through these laws.
 d. Illustrate the possibility of a more efficient, contextual approach towards
determining the balance.
e. Outline how the more effective approach can be utilised to make law on hate
speech.

Research questions

a. What are the origins of freedom of expression and its antithetical limitations.
b. How have countries created legislation towards the limitation of hate speech?
c. How has Kenya created legislation towards the limitation of hate speech?
d. What balance have countries espoused regarding freedom of expression and
hate speech regulation?
e. Can a better approach be tailored towards determining the distinction between
free speech and hate speech regulation?
f. How could such a nuanced approach be used to create legislation on hate
speech?

Hypothesis

i. Vague and deficient legislation concerning hate speech results in anarchical

exploitation of the freedom of expression, leading to tension, inter-cultural
conflict and violence.
ii. Overbroad and authoritarian legislation concerning hate speech may lead to
exploitation by the state aimed at suppression of critical speech.
iii. Hate speech conceptions vary across populaces and thus regulation needs to
be based on contextual standards.

Literature Review
Foundational discourse on freedom of expression may be found through an analysis of
John Stuart Mill's ‘On Liberty’26. Mills devotes the polemic to promotion of intellectual
curiosity, tolerance, and open-mindedness as individual virtues. He acclaims the
necessity of subjecting all propositions to scepticism, as there always exists the
possibility of its fallibility: it is fallacious to "assume truth for the purpose of not permitting
its refutation27." He, however, avers that to assume that his philosophy promotes selfish
indifference and pretends that people have no stake in one another's actions in life or
that they shouldn't care about one another's well-being unless it affects their own would
be a serious misinterpretation. He designs a 'harm principle' whereby verbiage that
would lead to the infliction of harm upon others should be tackled without the restraint
accorded for the respect of liberty.  Encroachment on their rights, inflicting on them any
loss or damage that isn't justified by his own rights, lying to them, or acting dishonestly
when dealing with them, taking unfair or ungenerous advantage of them, or even
selfishly choosing not to protect them from harm are all appropriate grounds for moral
condemnation and, in extreme cases, moral retribution and punishment 28. The only
legitimate reason for the state to interfere with individual liberty is to prevent harm to
others: "the only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others 29."

Jeremy Waldron, in his book, ‘The Harm in Hate Speech’ 30, passionately illustrates the
dark and daunting reality that open, unabridged expression stands damaging to the
cultures it violates31. Hate speech aims to make it much harder to build and maintain
their dignity. By linking ascriptive traits like ethnicity, race, or religion to behaviours or
qualities that should prohibit someone from being considered as a contributing member
of society in good standing, it seeks to tarnish the foundation of their reputation 32. He
attempts to proffer a sociological solution based on public condemnation and social
ostracism, but even he concludes that what is needed is a more nuanced and fair

26
Mills J, On Liberty, Gale Cengage, London, 1859.
27
Mills J, On Liberty, Gale Cengage, London, 1859, 21.
28
Mills J, On Liberty, Gale Cengage, London, 1859, 72.
29
Mills J, On Liberty, Gale Cengage, London, 1859, 13.
30
Waldron J, The Harm in Hate Speech, Harvard University Press, Cambridge, 2012.
31
Waldron J, The Harm in Hate Speech, Harvard University Press, Cambridge, 2012, 2.
32
Waldron J, The Harm in Hate Speech, Harvard University Press, Cambridge, 2012, 5.
response, one that values freedom of speech but also considers the harm done by hate
speech and the necessity of shielding weak people and groups from its repercussions 33.
We thus delve into the legal realm of hate speech regulation.

Thomas Webb attempts to analyse approaches used, in his paper, ‘Verbal Poison -
Criminalizing Hate Speech’34. He first undertakes the ever-elusive task of defining hate
speech, which he boils down to abusive, offensive, and insulting speech targeting an
individual's race, religion, ethnicity, or national origin 35. He then discusses the American
perspective, handling justifications for protecting free speech before venturing into a
discourse on jurisprudential limitations to the First Amendment 36. Webb discusses
landmark cases in the United States which have constructed hate speech
jurisprudence. He references Chaplinsky v New Hampshire, where the aspect of
'fighting words' was utilised to assert a conviction 37. Brandenburg v Ohio is brought into
the fray in terms of the shift on the constitutional standard for regulation of speech from
the 'clear-and-present-danger test' to the 'imminent lawless action' test 38. Webb
branches further into the international spectrum. He discusses the variance in legislation
according to historical and cultural challenges, and according to constitutional
jurisprudence. He boils regulation down into four elements to be considered: (1) who is
being protected (2) what type of action the regulation is meant to restrict (3) what
relevant harm or mindset must be met, and (4) where the speech is regulated 39.

Kirsten Ainley proposes a social-harm approach towards hate speech regulation in her
paper, ‘Hate speech regulation and democratic participation’, claiming that hate speech
can makes it more difficult for systematically marginalized groups to participate in
democratic processes40. Susan Benesch in 'Hate Speech regulation: A conceptual and
comparative analysis' analyses harm-based and dignity-based approaches to hate
33
Waldron J, The Harm in Hate Speech, Harvard University Press, Cambridge, 2012 204.
34
Webb T, ‘Criminalizing Hate Speech — A Comparative Analysis and a Proposal for the American System’, 50
Washburn Law Journal, 2011.
35
Webb T, ‘Criminalizing Hate Speech — A Comparative Analysis and a Proposal for the American System’, 50
Washburn Law Journal, 2011, 447.
36
Webb T, ‘Criminalizing Hate Speech — A Comparative Analysis and a Proposal for the American System’, 50
Washburn Law Journal, 2011. 448.
37
Chaplinsky v New Hampshire (1942), The Supreme Court of the United States.
38
Brandenburg v Ohio (1960), The Supreme Court of the United States.
39
Webb T, ‘Criminalizing Hate Speech — A Comparative Analysis and a Proposal for the American System’, 50
Washburn Law Journal, 2011. 454.
speech regulation41, while Jeremy Waldron depicts a more specific dignity-based
approach in 'The case for regulating hate speech in liberal democracies' 42.

40
Kirsten Ainley, ‘Hate Speech Regulation and Democratic Participation’, International Journal of Transitional
Justice, 2011.
41
Susan Benesch, ‘Hate Speech Regulation: A Conceptual and Comparative Analysis’, Human Rights Quarterly,
2012.
42
Waldron J, ‘The Case for Regulating Hate Speech in Liberal Democracies’, Columbia Law Review, 2012.