Drawing the line

Inciting hatred and violence, especially against minorities, has absolutely nothing to do with a 'marketplace of ideas'


The apparent assumption of “free speech” defenders is that offensive speech is essentially harmless—that is, just words with no demonstrable link to consequences. But questioning whether speech can really incite someone to bad behaviour seems irresponsibly obtuse. Obviously, words have consequences and frequently inspire actions. A primary purpose of language is to communicate with others in order to influence them.

In democratic societies that stand for equality and freedom—often with taxpayer-funded programmes that promote those values by assisting vulnerable groups—it makes no sense to tolerate hate speech that actively works to oppose those values. Further, hate speech violates the spirit of human rights codes and laws, diminishing their purpose and effect. A society that allows hate speech is one that tolerates prejudice at every level—politically, economically, and socially—and pays the consequences through increased discrimination and violence.

Voltaire once said “I disapprove of what you say, but I will defend to the death your right to say it.” Civil libertarians often defend and support the notion that the right to freely express offensive opinions is a bedrock human right that should not be abridged except under very narrow circumstances—typically for hate speech that directly incites violence against a person or group of persons. However, I support broader prosecution of hate speech—defined here as speech that offends, threatens, or insults groups, based on race, colour, religion, national origin, sexual orientation, disability, or other traits. Proscribing hate speech more broadly would, I believe, foster a more inclusive, tolerant, and safer society.

Should hate speech be discouraged? The answer is easy— of course! However, developing such policies runs the risk of limiting an individual’s ability to exercise free speech. When a conflict arises about which is more important—protecting community interests or safeguarding the rights of the individual—a balance must be found that protects the civil rights of all without limiting the civil liberties of the speaker.

Think about it. It’s always easier to defend someone’s right to say something with which you agree. But in a free society, you also have a duty to defend speech to which you may strongly object.

Hate speech is, in my view, a man made destructive creature as it is divisive and promotes intolerance. It further sets the stage for violence by those who take the speaker’s message to heart, because it creates an atmosphere of perceived acceptance and impunity for their actions. Left unchecked, it can lead to war and genocide, especially when the State engages in hate speech.

Like any sensible person, I am a strong believer in the unalienable right to freedom of speech and I understand that defending freedom of speech is most important when it is speech that many people do not want to hear. Freedom of speech is the core of any democratic society, and it’s important that freedom of speech be strongly respected and upheld. Censorship in all of its forms is something that must always be fiercely opposed. But we must never confuse hate speech with freedom of speech. Speech that offends, insults, demeans, threatens, disrespects, incites hatred or violence, and/or violates basic human rights and freedoms has absolutely no place in even the freest society. In fact, it has no place in any free society, as bigotry is fundamentally anti-freedom by its very nature.

The human right to freedom of speech must always be balanced against the human rights to dignity, respect, honour, non-discrimination, and freedom from hatred. Civilised countries consider hate speech to be among the most serious of crimes, with many countries even placing it at par with murder. In some countries, people are automatically declared guilty of hate speech and other hate crimes unless they can absolutely prove their innocence beyond any reasonable doubt. The principle of “guilty until proven innocent” may seem a bit harsh to some, but it makes sense when you consider how severe the crime of hate speech is – it is a crime that simply cannot be tolerated in a democracy. Hate speech is not merely speech, but is, in fact, a form of violence, as has been established at and by the international community many times. Hate speech doesn’t merely CAUSE violence.

Hate speech IS violence.
The Constitution of Kenya guarantees fundamental rights, including the freedom of expression. Freedom of expression is, however, not absolute, and can be limited when exercised in a manner that violates the rights of others. The main provision guiding the exercise of the freedom of expression is Article 33. It is important to note that the Constitution expressly excludes hate speech within the Article making provision for freedom of expression.

In Kenyan laws, under the Penal Code, although it does not specifically talk about hate speech; it does however depict a view that hate speech has been there for long as a specific offence affecting the right to individuals and groups to full realisation of their human rights. Section 77(1) of the Penal Code on incitement to violence provides that “Any person who does or attempts to do, or makes any preparation to do, or conspires with any person to do any act with a subversive intention, or utters any words with a subversive intention, is guilty of an offence and is liable to imprisonment for a term not exceeding seven years.”

Further, Section 96 on threats in regard to breach of peace states that “ Any person, who, without lawful excuse, the burden of proof whereof shall lie upon him, utters, prints or publishes any words, or does any act or thing, indicating or implying that it is or might be desirable to do, or omit to do, any act the doing or omission of which is calculated;  to bring death or physical injury to any person or to any class, community or body of persons; or to lead to the damage or destruction of any property is guilty of an offence and is liable to imprisonment for a term not exceeding five years.”

The quest and thirst by Kenyans in fighting hate speech has always remained elusive despite there being a National Cohesion and Integration Commission (NCIC). The commission is borne out of the realisation that long lasting peace, sustainable development and harmonious coexistence among Kenyans requires deliberate normative, institutional and attitudinal processes of constructing nationhood, national cohesion and integration.
Section 62 (1) of the NCI Act provides that “(1) Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both.”

The Constitution is clear on what hate speech constitutes, yet justice, more often than not, falls short of public expectations. The dominant public perception is that there is a brand of justice for the well-to-do and politically connected, and a different one for those not similarly endowed. Hate speech propagated by the mighty is free speech. As Jeff Koinange would say, “What a country!”  If freedom of expression is one of the building blocks of a democratic society, hate speech on the other hand is a blatant violation of that freedom. It must be severely punished.

The International Criminal Tribunal for Rwanda (ICTR) in the case of “Prosecutor v Akayesu”, the court observed that in light of the culture of Rwanda, acts of incitement can be viewed as direct or not, by focusing mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof. It stated that “The meaning of the words used in the specific context is a principle consideration. It does not matter that the message may appear ambiguous to another audience or in another context. What matters is whether the audience understands it to convey hatred or resentment which could stir violence against a certain group of people.”

Clear threshold
It further stated that for communication to amount to hate speech, the tone with which the statement was conveyed is important. Does it convey hostility or resentment against any particular group? Does it reinforce existing negative stereotypes?
There is a thin line between freedom of expression and hate speech. Care must be taken to ensure that the charges facing hate speech suspects actually meet the threshold of hate speech, to avoid compromising the exercise of freedom of expression. Therefore, in meeting the threshold, the speech in question must be considered in the context of what is happening at a given time, such as existing tensions also there should be a pressing social need, which must be supported by relevant and sufficient evidence. The hate speech should also have or cause to have a retaliatory factor.

In the wake of a new revamped hate speech season in Kenya, the Chief Justice, during the launch of a democracy and justice campaign programme in Nairobi, made the following statement: “As we head towards elections, the drums of possible violence are being beaten … and if you haven’t heard them, then you don’t know anything about this country.”
The public ought to realise that a society which allows hate speech is a society that tolerates prejudice at every level—politically, economically, and socially—and pays the consequences through increased discrimination and violence.

Courts of law should be able to look at broader patterns of hate speech in a culture to determine whether a hateful atmosphere inspired or contributed to violence, or would likely lead to future violence. When hate speech is relatively widespread and acceptable (such as against Muslims or abortion providers), it’s not difficult to see the main precursor to violence—an escalation of negative behaviour or rhetoric against the person or group.

Like all rights, the right to freedom of speech comes with great responsibility and it must be balanced against other rights. All of these things go far outside the realm of free speech, and all other advanced democracies have already passed laws against most of these things in order to protect basic human rights. Outlawing these forms of hatred does not interfere with the sacrosanct right to freedom of speech, and it would not violate the First Amendment in any way since hate speech is not freedom of speech in any way, shape, or form. Nobody has the right to take away rights from others. Nobody has the freedom to take away freedoms from others.

We are not talking about censorship here. We are talking about cracking down on hate speech and protecting basic human rights. Nobody in a democratic society should ever have the ability to incite hatred and violence against vulnerable minorities. There is zero logical reason that anyone should ever have the right to spread hatred. Inciting hatred and violence against minorities has absolutely nothing to do with a “marketplace of ideas”. In a civilised country with democracy and human rights, the man responsible for this disgusting hate speech display would be prosecuted to the fullest extent of the law under human rights legislation. Only in Kenya do we allow this hatred to exist as “free speech”. Well, I say no more. It’s time for Kenyans to finally join the free, civilised, and democratic world.

Hate speech is NOT free speech.
However, it does not take precedence over other rights and responsibilities enshrined in the Constitution. Kenya’s history proves that hate speech propagated by politicians has led to distrust and disunity and consequently ethnic warfare. The extreme levels of impunity where political leaders always get away with their hateful crimes worsen the situation. This only goes to show that the government is neutral and lenient whenever leaders commit such acts. Failure to regulate hate speech ultimately implies that such expression is acceptable.

The Government, in particular the Judiciary, needs to place policies and procedures that will help curtail this rising trend. There seems to be little understanding by the public on the impacts of hate speech. This is evidenced by the cheers they make for hate crusaders. The Judiciary therefore must step up efforts to address the malignant effect of hate speech before its effects take root. As Jeremy Waldron, author of “The harm in hate speech” wrote, “the tiny impacts of millions of actions—each apparently inconsiderable in itself—can produce a large-scale toxic effect.”


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