Annoying the right people

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By Fuad Abdirahman

The Constitution protects the right to free speech. This right is, however, not absolute as the same law goes back to prohibit defamation. The question recently has been how, in light of the foregoing, law enforcement should handle teenagers who confessed to engaging in exam malpractice and hurled insults at two cabinet sectaries. What’s their liability? Were their utterances defamatory?

General public sentiment is that Government should not have involved itself. I mean, it’s a small matter of teenagers being teenagers. Besides, as already stated the young people have a constitutional right to free speech which, in the circumstances, Government has no right dictating how it should be exercised. To act otherwise is an affront to this right.

The constitution states in part that “…in the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others”. This is the caveat that those supporting Government in turn cite. Who is right?

Elsewhere, a form four candidate was also arrested after expressing intention, in his answer booklet, to eliminate President Uhuru Kenyatta and Majority leader Aden Duale. Again the argument is that, “he was only a teenager. Government’s role ends once it determines that the threat was a false alarm, a work of imaginative fiction. There is no need to prefer punishment.”

According to Richard A. Epstein, a legal scholar, “The theory of freedom (in contrast) not only grants rights to individuals, but also insists that there are correlative duties that are associated with those rights.” Given the threat of force, what is the remedy? He proceeds to ask, “Do we give injunctive relief to its potential victim before it occurs, or do we allow the harm to run its course before the state intervenes?”

Limiting freedom of speech becomes complicated for the reasons that deciding on what is offensive and tantamount to hate speeches changes as different people make different judgments. What one views as a hate speech may as well be a good speech for another one.

Hate speech, according to the United Nations Committee on the Elimination of Racial Discrimination, is the dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means, which includes incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin.”

John Stuart Mill, meanwhile, argues that “freedom of opinion and sentiment should exist in society for everyone, on every subject matter, practical or speculative, scientific, moral or theological… however immoral it may be considered.”

Mill insists that even if a person is alone against the whole mankind in adopting certain opinions, even if he/she crosses the social red lines and discusses moral, political, or religious matters, and even if a person’s opinion is shocking, unorthodox, or heretical, and false, all these do not provide a ground for prohibiting such speech. Even then, like other scholars, he reiterates that speech can be limited if the intention is to prevent harm to others.

Justice William J. Brennan who, between 1956 and 1990, served as an Associate Justice of the United States Supreme Court, said, “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” In the US, while the Government discourages hate speech, it is prevented from limiting speech by the First Amendment.

Of course, we haven’t answered our initial question: did the students commit a statutory offence to warrant serious action?

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