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INCITEMENT TO HATRED

Explainer: Hate speech under Kenyan law

May be narrowly defined as speech or expressive conduct that constitute incitement to ethnic, racial (etc) hatred.

In Summary
  • In January 2020 a three-judge bench ruled that Section 96(a) of the penal code is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution. 
  • The other law under which the offence of hate speech is punishable is Section 13 of the National Cohesion and Integrations Commission Act.

Oftentimes politicians find themselves on the wrong side of the law when it comes to their speech.

Though none has been jailed, a number of them have been charged with the offence of hate speech or incitement to violence.

What is considered hate speech? It is speech that promotes hatred of groups of people on the basis of their race, religion, ethnicity or national origin.

 

Such speech or expressive conduct may suggest that the group is inferior to others, or may advocate that the group be excluded or discriminated against in different ways, eg by denying it access to employment, education, political positions, business, etc.

Hate speech may also be narrowly defined as speech or expressive conduct that constitute incitement to ethnic, racial (etc) hatred.

According to guidelines for monitoring hate speech published by the National Cohesion and Integration Commission in 2010, a number of factors need to be taken into consideration when characterising what constitutes hate speech.

This includes taking entire speech into account, checking the accuracy of the statement, the totality of its context, tone of the language or expression, the purpose of the speech and its likelihood to impact or endanger.

Section 13 of the National Cohesion and Integration Act states that the threshold is underlined by proof that the speech or expression threatens, abuses or insults others based on their ethnicity, and must be intended to stir up ethnic hatred, or, under Section 62, inciting ethnic hatred, hostility or violence.

One of the prominent politicians who found themselves dragged to court over the offence of incitement to violence is former Machakos Senator Johnson Muthama.

However, the case was dismissed.

In January 2020 a three-judge bench comprising justices Jessie Lessit, Luka Kimaru and John Mativo said Section 96(a) of the penal code is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution. 

 

While ruling on a petition filed by the former senator challenging his prosecution over incitement to violence, the judges said it is always the prosecution’s duty to establish its case in a criminal trial.

The bench held that the said section of the penal code infringes and transgresses on the presumption of innocence of an accused person in a criminal trial.

The other law under which the offence of hate speech is punishable is Section 13 of the National Cohesion and Integrations Commission Act.

If found guilty of the offence one is liable to a fine not exceeding Sh1 million or to imprisonment for a term not exceeding three years or both.