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

13.
Hate speech
(1)

A person who—

(a)

uses threatening, abusive or insulting words or behaviour, or displays any written material;

(b)

publishes or distributes written material;

(c)

presents or directs the performance the public performance of a play;

(d)

distributes, shows or plays, a recording of visual images; or

(e)

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.

(2)

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.

(3)

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.
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Full ruling of the court

Can be found here

Meanwhile, I hear the clown in chief has gone off the rails again. The prince can’t believe he can be defied by a court of law.

My lawyer friends, Sirius B, I am looking at you, when you have time, give a brief comment on the opinions and majority ruling.

If you are not a lawyer, don’t feel left out, I asked lawyers because they seem never able to agree on a singular matter, well just like architects not able to agree on whether a building has been well designed or well executed.

My brief comment for those friends of mine like Federrico and Brian who are old and maybe quite cynical, this is my opinion of the ruling and opinions.

1st dissenting opinion by Ojwang: We have always done it like this, we should keep doing it like this and maybe we can cure it in this manner. I hear, that was Scalia’s reasoning. Here is where those in the USA will be helpful

2nd dissenting opinion: I am here to defend Uhuru and IEBC, justice be damned. The majority ruling has set a high bar for conducting the elections and I am not the Chief Justice but I am Jack Bauer, Rambo, wonder woman and Superman so I scrutinized all the documents and they are genuine. The rest of you are blind.

Majority ruling: This country has worked hard to come to this point. Lives have been lost in coming up with this constitution. If it can’t be followed why have it. We shall rule again in the same way until you comply with the law.

And that, my friends, is the state of the nation.

Religion is not the source of morality

Thinking is.

It is for this reason I disagree with Muluka in his post where he opines that the clergy have kept quiet in the wake of the executive attacking the presidency.

He expresses surprise when he writes

The religious community is loudly silent, even as the ruling political class pounds the justice system in Kenya. In the wake of presidential election result on August 11, spiritual leaders were sonorously everywhere.

which should not be strange. The clergy have everywhere and almost all the time been in bed with the ruling class. They have a captive audience. And the state wants an already pliable people to rule. This is how the colonial government did its business through the mission schools and the several churches they put up in the country. Don’t think. Trust and obey, we know what we are doing is the motto both of the thieving for profit charlatans and the state.

He goes further to write

In the end, the pious people who asked Raila to go to court turn out to be profane prelates. They hide their worldliness and leavened hypocrisy behind cloaks and masks of piety. They have defiled their pulpits with hypocritical incantations and petitions. Little wonder that Kenya’s heaps upon heaps of prayers seem to go unanswered.

And I disagree. There is no hypocrisy in the part of the prelates. The state, in this case, represented by criminals in chief have given the clergy access to power. There is a church everywhere because the society is dysfunctional but also because there is money to be made. The prelates have not defiled the pulpits. The pulpits have always been profane. They are positions from which the call for money and power. They do not do any meaningful duty to the nation except sell hope where the government has failed to provide basic services. And no prayers anywhere get answered. There is nothing unique about Kenya not these charlatans.

He comments

Yet there is nobody to defend the court system and the country against our all-powerful president. It is a crying shame that religious leaders simply look on.

And one wonders whether he just arrived from planet Saturn. The executive has been rogue, disobeying court orders with abandon. To act like it is suddenly happening is to be blind to recent history. The criminal in chief and his CSs have made disobeying court orders their way of doing business. And to show how much contempt they have for the courts and the people, Soi, a person in court for misappropriating Olympic cash has been chosen head of mission for the next international event.

If there is any truth in his post, this paragraph

Our religious conscience is dead. The Church itself must accordingly be understood to be dead, too. Religious leaders worship politicians and money. There is no God in the blasphemous citadels that dot the national landscape. Irreverent men and money harvesters lead their equally lost “flocks” here in pretending to praise God and Jesus Christ.

is the only one that comes closer to it. But there is nothing strange here.  A church that didn’t need money from politicians or congregation would be dead on arrival. Point me to any church that doesn’t require money, and I will show you a dead church. There is no god and there is definitely no blasphemy. If there is any blasphemy, it is to call the god of the bible a just god. That is totally blasphemous.

He writes

If Christ were to come back today, he would be crucified in Kenya

Which reminds me of the Inquisitor in Brothers Karamazov. Ivan tells Aloysha, the bishops will crucify Jesus or at least ask him to go to allow them to continue stealing and raping the country. This is not strange again. THe church would lead the onslaught against the non existent Jesus, a Jesus they created as a money making scheme.

In civil discourse, free of religion, men and women who stand up to guide the society at cross roads are not called

In literature and religion we call such persons Christ-like figures

but moral law givers. Christ, if he existed, is a Johnny come lately, that only those devoid of knowledge think of upright men and women as being Christlike. Anyone who has read the so called Christ teachings without a faith filter will find them deficient.

In concluding this long rant, only thinking men and women and not religious people will see the problem with the criminal in chief’s disregard for both the office and the person of Chief Justice Maraga. It is only the thinking person that will be able to say why there is a problem. The religious person only believes there is a problem. And this is where the matter lies. It is in applying our thinking abilities not our beliefs held without question that we will be able to address the problems facing us as a country and a species.

There will be no elections

On 17th October as announced by the electoral body unless reforms are done.

The Supreme Court in its ruling of 1st September, ruled the electoral body committed irregularities and illegalities, failed to conduct the election according to the constitution.

The chairman wrote a memo  to the secretariat’s CEO demanding an explanation of so many irregularities that occurred during the 8/8 polls. We have not seen the response to the memo and I doubt one will be forthcoming.

Anyone with half a brain, who having read the memo and taken into consideration that whenever someone breaks the law, they are liable for punishment, knows too well that IEBC as currently constituted is a sinking ship. That whoever wants it in place is either very stupid or very stupid.

The thief in chief and land grabber in chief are opposed to the reforms to make the electoral body transparent. We cannot continue to have opaque processes. We cannot and should not behave like elections happens to us. The constitution is very clear; those in office are there on delegated responsibility. They have to get there in a free and fair process that reflects the will of the people, that gives it legitimacy and that allows the losers to be contented the process was above board. Anything short of this, is tyranny, rule by fiat. And we cannot and should not allow this to happen.

I have a disdain for the current occupant of state house. He was born in privilege. Brought up in pilferage of public resources and authoritarianism. He is a stranger to rule of law nor to hard work. The two of them have the special position of being sitting heads of state to be criminals at the ICC. And while their cases were dropped, they were not found innocent. The court ruled witnesses had disappeared under mysterious circumstances or had been intimidated. Let no one lie to you they were innocent of those crimes. They have used state power to either continue thievery or advance their criminal enterprise. In this process they have become a darling of the US, European Union who claim on one hand to support the rule of law while on the other support criminal governments in Africa and beyond.

Morpho and Safran, French companies involved in our election have been fined by the France government for bribery in Nigeria. In California for selling fake equipment, but in Kenya the French government is quiet. These buggers now claim to have audited their systems and will now sue the Nasa coalition for libel while IEBC is in contempt of the Supreme Court for failing to provide access to the court appointed ICT professional. It has been said by those wiser than me that you can fool all the people some time, you can fool some people all the time, but you can’t fool all the people all the time. We have had enough of electoral fraud since the country got her independence in 1963. Not anymore.

This rant ends here, to be continued…..

Uhuru Must end the side shows

The side shows and circles in Kenya is now sickening  I mean lives are literally on a standstill coz of elections. I don’t know about you but we really do need to get done with this thing and move on with our lives.

Just when you thought our focus should be on ensuring IEBC runs a credible elections, the criminals, like Chiloba, who bungled it are tasked to oversee the process and some people have the hopes the results would be any different.
A petition has been filed to remove CJ Maraga from the office. The witch-hunting of the judiciary by Jubilee is now irritating and has potential to drag the country to dangerous days.

Uhuru Kenyatta must lead his attack dogs in accepting the verdict of the supreme court. If they don’t know how to do it, they can learn from here

Meabwhile, it should be known to IEBC, we shall have no elections without reforms