The NCIC Did Not Create Hate Speech
Dr Joyce Nyairo must be commended for provoking deeper reflection and thinking into hate speech and popular music in her article “The politics of popular music: When exactly does a song become hate speech?” published in the July 17, 2012 edition of the Daily Nation. I certainly share her sentiments around the need to provide imaginative proposals around how to deal with ethnic polarization in the country.
Similarly, I would agree that it is imperative to sharply “draw the line between issues of literary taste and those of criminal justice.” Just what is “hate speech”? Does what is being presented before the courts constitute hate speech? This obviously is part of the core jurisdiction of the judiciary. It is critical for a number of reasons.
For instance, clarity as to what constitutes hate speech, and is hence prohibited, ensures that the law conforms to the principle of legality which requires that the law provide clear guidance as to the elements of crimes. This ensures that the law is not used selectively to quash and suppress legitimate dissent or criticism. Joel Simon of the Committee to Protect Journalists noted in 2006 that “[m]any governments [in Africa] have exploited the perception that the violence in Rwanda was fuelled by the media to impose legal restrictions on the press in their own countries.”
Moreover, lack of clarity in the law magnifies the danger of creating perceptions of bias against or favouritism towards some individuals and groupings. Recently, there have been loud protestations from some quarters that the National Cohesion and Integration Commission (NCIC) should prosecute presidential hopeful Cyrus Jirongo for engaging in hate speech following a reported statement made while referring to the construction of a super-highway on Thika Road: “Building a 12-line road and fly-over is tribalistic. A good leader could have built a four lane road and used the remaining funds in putting up factories in Busia County which had none.”
However, there are also pieces within Dr Nyairo’s article to disagree with. She, for example, claims that the NCIC is “reaping what it sowed” because “few organizations fan the gospel of ethnic purity in the way this commission has so far done. And when you continually single out people in air-tight ethnic blocs, soon enough they herd in that direction at the expense of every other identity they possess…”
The problem with this analysis is that it totally departs from Kenya’s political, social, economic and historical reality. The ethnic calculus that dominates Kenya’s existence is, by no stretch of the imagination, a creation of the NCIC. What the NCIC has done is to unearth and provide – through research, documentation and analysis – evidence of what has traditionally been whispered about how this country is governed: that resources have followed power, which is mobilized, arranged and organized ethnically.
It is surprising how much denial there is about this fact. Whereas it is true that we as Kenyans enjoy and ascribe to other identities – based on religion, profession, generation and so on – we have continuously exhibited a proclivity to retreat to our ethnic cocoons when dealing with issues of politics and governance. This is not an invention of the NCIC; it is merely the bearer of bad tidings. Was it not Russian writer Nikolai Gogol who counselled, “It is no use to blame the looking glass if your face is awry”?
Dr Nyairo makes the pointed accusation that what the NCIC has been doing is to preach the “gospel of ethnic purity” while singling “out people in air-tight ethnic blocs”. Yet, the documented statements of the NCIC have been about tolerance and equitable sharing among Kenya’s different and diverse ethnicities especially in light of the ideologies of ethnic purity spearheaded by our political elite. Is everyone who makes reference to tribe a tribalist?
Kenya has a stark choice in this regard. We can continue in the vein of vehement denial, burying our heads in the sand and proceeding to live in a make-believe world: this by claiming that because we are individually and collectively repositories of different identities, it is then wrong to claim that the tribe is our dominant political identity and tribalism is our thriving political currency. This has been attempted before; not just in Kenya but in different other countries. Yet so long as there is a perception – real or imagined – that certain ethnicities are the beneficiaries of these silences, trouble – of the vicious kind we saw in 2007 – will never be far away.
Alternatively, we could begin to dispassionately look at all the facts produced and evidence adduced. We can make a bold choice to stare our political, social, economic and historical reality in its face and confront it. Naturally, there will be those who will be defensive about it and instinctively seek the continuance and comfort of the status quo, a feature alluded to by Dr Nyairo: “If, as we have been repeatedly told, Kikuyus horde all resources including land and state jobs, why wouldn’t the poets lyricize the siege mentality growing among “their” people partly on account of the commission’s research?”
Others, however, will use this opportunity to re-interrogate, re-think, remodel and repackage the project of nationhood. Where did it all go wrong? How can it be remedied? How is it that we can reformulate Kenya’s laws, policies and ethos so that, for instance, the Kikuyu are never again accused of hording all resources including land and state jobs? Is this not the challenge of the post-independent generation?
This requires us not only to be brutally candid but also be completely ready and willing to chart a new political course. It requires bold and visionary political leadership: which has been completely lacking and missing. Kenya’s political leaders have instead resorted to what they know best: more ethnic mobilization within our politics. There is obviously a certain venal political logic to this: ethnic polarization has provided the political elite with the political clout to negotiate themselves into serious political power. This, naturally, has been the tragedy of our post-colonial politics; hopefully it will also not be the graveyard for our post-colonial intellectuals.
Mugambi Kiai is the Kenya Program Manager at the Open Society Initiative for Eastern Africa (OSIEA). The views expressed in this article are entirely his own and do not reflect the views of OSIEA.