Article 33 of the CoK 2010 concerns freedom of expression.
(1) Every person has the right to freedom of expression, which includes–
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c) academic freedom and freedom of scientific research.
(2) The right to freedom of expression does not extend to–
(a) propaganda for war;
(b) incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that—
(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or
(ii) is based on any ground of discrimination specified or contemplated in Article 27 (4).
(3) In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.
Subsidiary legislation have interpreted hate speech to mean
uses threatening, abusive or insulting words or behaviour, or displays any written material;
publishes or distributes written material;
presents or directs the performance the public performance of a play;
distributes, shows or plays, a recording of visual images; or
provides, produces or directs a programme,
which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.
Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.
In this section, “ethnic hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.
which defines ethnic group as follows
“ethnic group” means a group of person defined by reference to colour, race, religion, or ethnic or national origins, and references to a person’s ethnic group refers to any ethnic group to which the person belongs;
“ethnic relations” include racial, religious, tribal and cultural interactions between various communities, and the words “ethnic” and “ethnicity” shall be construed accordingly;
It is my contention that, while the idea informing this laws could have been noble in the minds of the framers of the law, they are problematic and that 33(2) in its entirety should be struck off the law books.
To start on a lighter note, to criminalize propaganda for war is not far from criminalizing lying. It is unlikely that I can start a war through propaganda.
On a very important score, though, looking at the subsidiary legislation and definitions of ethnic group and ethnic relations which in its definition includes religion and relations to include culture would in effect be construed to allow any aggrieved religious, who finds my posts offensive can go to court and seek for my arrest.
In opposing the particular section that prohibits hate speech, I argue that it instead makes it for such speech to simmer below the surface and can only explode with detrimental consequences. Any speech that we consider hate speech should be dealt with not by criminalizing it, but by allowing robust debate as response to expose why such speech is wrong.
During electioneering period in this country and in many places, politicians seem to chose the crudest words to refer to their opponents and their communities. They exchange dirt by the payload. The work of the citizen and the scholar is to point out why such speech is inappropriate, because that’s what it is, inappropriate speech.
You’d ask what about advocacy of hatred? Should such speech be allowed? A person who can teach you to hate is sick and to actually follow them in hating someone or group without cause means you too are sick and no law can cure that. No law can cure a lack of humane feeling. To try to cure hate of a person/ people through legislation is futile and unimaginative.
The constitution already guarantees the right to property. Anyone who attempts to destroy property, in my view, takes individual responsibility for their actions. To include incitement to cause as a possible jail-able offence, means one that the framers of the constitution have assumed people have no agency and as such are only waiting for an order to cause harm. I would argue further, that we should do away with the entire penal code. Why have it if all a person need to commit an offense is someone to tell them to do it? We are all robots waiting for direction on who to harm next.
It is my contention too, that the National Cohesion and Integration Commission is unnecessary. It is the role of education to do that. If we can’t educate our children at home and in schools to be tolerant, no amount of laws can cure poor upbringing.
We should reject such laws because the next government that doesn’t like criticism can find an excuse in the exceptions and criminalize dissent. I am not in this asking people to have no control of their mouths, on the contrary, I am charging the society to do its work in bringing up citizens.
Ni hayo tu.