There is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics.
The norm is incendiary speech by pro-government politicians and online activists going unchecked while law enforcement agencies enthusiastically pounce on the mildest expressions by critics.
While many have compared the current ethnic polarisation to that of the period preceding the 2007-08 post-election violence, we have seen only two prosecutions: of Machakos Senator Johnstone Muthama (Cord) and political scientist Mutahi Ngunyi (Jubilee).
The National Cohesion and Integration Commission has received many complaints, the bulk of which it sweeps under the rag for not wanting to upset the government.
Like other independent commissions, NCIC has stuttered when it comes to holding the government to account.
However, since the appointment of a politician, former URP chairman Francis Kaparo, as NCIC chairman in 2014, the commission has operated more like an arm of the ruling coalition.
It prosecuted Ngunyi only after the most intense public pressure, including a petition by the Law Society of Kenya.
Ngunyi himself came to recognise that his tweets deriding Luos and Luyias had gone overboard and apologized, thereby incriminating himself.
Before Ngunyi, NCIC had gone mostly after opposition supporters, among them Robert Alai, Seth Odongo and Allan Wadi. And the judiciary played along.
While all hate speech suspects are charged for offences under the National Integration and Cohesion Act, the bail terms reflected a degree of arbitrariness.
Odongo’s bail was initially set at Sh2 million and then reduced to Sh500,000. Alai was released on cash bail of Sh200,000 or Sh300,000 bond. Muthama’s terms were Sh100,000 cash bail or Sh300,000 bond. Mutahi Ngunyi’s terms were Sh200,000 cash bail.
Odongo, Alai and Wadi all served times in remand prison. In Alai’s case the prosecution opposed his release on bail, allegedly because he had been charged with similar offence in the past. Yet Alai had been acquitted in that charge.
In late 2014, NCIC also prosecuted Gatundu South MP Moses Kuria, who by any account is the most notorious hatemonger of our times.
But before the case went into trial, NCIC chairman Kaparo initiated a reconciliation programme under which Kuria would avoid trial. Why NCIC chose this route in Kuria’s case and not the rest was not explained.
Nevertheless, Kuria made a mockery of NCIC’s efforts, posting more incendiary material on his social media pages as the negotiations went on. Kaparo was shamed into withdrawing the reconciliation proceedings.
"While the conciliation process has been in progress, Kuria has continued to post material on his social media accounts that in the opinion of the commission may cause disharmony and are in contradiction of the spirit of conciliation…The only logical thing to do is for us to withdraw and let the court continue with the case to the logical conclusion,” he said.
That was February. The case has never even commenced since then, but Kuria has used his freedom to incite more ethnic animosities.
In July, in response to the opposition’s criticisms of corruption in the National Youth Service, he was captured on national television telling a group of heavily armed youths in his constituency: “You are my militia. I have given you pangas, cut up someone if you feel like it.” No action was taken.
But the authorities’ treatment of Kuria as a sacred cow was hammered home this week.
After nearly a month of alleging that he recruited and coached witnesses who incriminated Deputy President William Ruto at the International Criminal Court, Kuria dared walk into the headquarters of the Directorate of Criminal Investigations to repeat his assertions.
Given that witness tampering and interfering with the course of justice are crimes in Kenya, one would have expected the police to hold Kuria to his confessions and charge him with appropriate crimes. Lo and behold, he walked scot free.
Likewise, there was not a whiff of interest by the police in derogatory remarks Ruiru MP Esther Gathogo made about Kamba women at a rally where Jubilee politicians were reacting to the utterances for which Senator Muthama is being prosecuted.
One can’t avoid the inference that hate speech is an actionable crime only when perpetrated by opposition leaders and activists. In our new political climate that suppresses honest debating on issues, such charges will only soar.
This country faces very serious problems, such as unprecedented income inequalities, institutionalised ethnicity and economic inequalities. Despite Uhuru’s best efforts to spin these, evidence is growing that establishment politics has reached its limits.
Kenyans on both sides of the politics are getting impatient over stolen public funds that corrupt individuals are splashing in ostentatious lifestyles all around them.
Rather than address these worries, the government has seemingly adopted a strategy of clamping down on dissent, in a way that can perpetuate the siege that Kikuyus feel every time Uhuru Kenyatta’s failures are brought under the spotlight.