Against free speech laws

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

Hate speech

A person who—


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.

About makagutu

As Onyango Makagutu I am Kenyan, as far as I am a man, I am a citizen of the world

13 thoughts on “Against free speech laws

  1. tildeb says:

    Any time you try to codify ‘insult’ as a crime, you are altering the legal and Constitutional framework from clearly defined prohibitions based on individual rights and individual freedoms to the vagaries of responding to personal feelings with the blunt hammer of law. What constitutes an ‘insult’ is entirely up to each person’s feelings, each person who can claim they feel insulted, each person who can then quite rightly call on the State to punish the offender, can call on the State to impose individual feelings on others… but on behalf of ‘protecting’ their identifiable ‘victimized’ group.

    And the drooling idiots who can’t think straight go along thinking well of themselves as they dismantle our shared individual rights one at a time in the name of ‘freedom from opprossion’.

    This is Post Modern thinking in action. This approach that supersedes individual rights in law with tiered, hierarchical ‘protection’ rights for group membership, group identity in law, is so idiotic, so stupid, so absurd that it burns. Yet country after country go along with this shift, with this utter idiocy and populations unable to think well try to ‘help protect’ the delicate sensitivities of those brittle snowflakes who constitute certain described groups seen to be victimized by other described groups. This is the binary linguistic model of Post Modernism where there are only oppressors and oppressed, only victimizers and victims, only groups competing for power to impose other groups who have lost it. The individual doesn’t matter except as a representative of certain groups.

    That’s way past socialism. It’s fascism on its merry way to becoming totalitarian once the individual loses all legal rights and legal freedoms once group identity in law reigns supreme.

    This is the worst kind of tribalism, of binary tribal thinking, and thrives on believing that such groups are real entities in and of themselves, real things that really do separate one person from another, real things that are naturally formed by the individual automatons who constitute them. That’s how individual rights are suppressed/reduced/shifted in law and – every time – some punitive form of fascist response arises… in the name of legal ‘protection’ for victimized groups, of course. and legal prohibitions against those individuals who stand against this rising tide of PoMo lunacy.

    Why should Kenya be exempt?

    Liked by 1 person

  2. Veracious Poet says:

    African constitutions have come to mean nothing because parliamentary acts override constitutions. What you need is a few apes in the assembly and new laws are enacted that often contravene the constitution. There is a law in Ghana against spreading info that “causes fear and panic.” Again they didn’t define “fear” or “panic.” I’m sure if they do it will include the president’s motorcade and all the noise. Throughout its history the law has been used to silence only the most vocal editors and activists. They don’t include their own barbaric propagandas.


    • makagutu says:

      I think Africa issa country. These laws are stupid to say the least


      • Veracious Poet says:

        Africa is geographically a continent but all black African nations share similar economic, social, cultural and political realities. No need to exclude any. No single Black African nation can exclusively develop. Sometimes I’m surprised you still put your hope in a political system whose problems were predicted more than 100 years ago. I’m sure these problems will escalate in the next 100 years. Ghana’s public debt is now at 139 billion. Generations of peasants, head porters and fishermen will be paying it in the form of taxes. I captured some of these issues in my new anthology which sooner or later may be classified as offensive or even banned.


  3. renudepride says:

    Thank you, my Kenyan brother, for this informative post and for publishing here the essentials of the Constitution of Kenya. Perhaps we should export Donald Duck (aka tRump) to your fair shores. He wouldn’t last a moment outside of a Kenyan prison as everything he utters is intended to inflame and incite violence and hatred. I’m just kidding, of course. I wouldn’t wish him to burden any other nation as he has already upset the fragile peace in this land.

    I understand your arguments for constitutional reform. It’s just not my place to determine what’s best for any country aside from Greece and the USA. Naked hugs!


  4. volkan254 says:

     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.
    I like this statement, but some what disagree
    This learned people are far from practising what they’ve learned, the diversity they’ve encountered and still end up drumming their tribal drums.
    Worse is that the gullible people who never question their flow of thought or worse put their brains on parking, result, I trust few scholars
    With degree ni harambee ideologies why should I support a learned person, some even have fake papers, and are proud of it
    Enough rant, I’m already radical in the office


  5. […] here, and here are some of the instances i have expressed myself on the question of free speech. I should make it […]


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