Why Kenya's Hate Speech Legislation Is Not Really About Hate

Every once in a while, Kenyans love to get into a tiff over the preponderance of hateful and bigoted messaging that forms the subtext of our national politics. While the idea of the nation as, in David Ndii’s words, “a marriage of tribes”, of ethnicities that compete for chunks of a “national cake”, appears to be taken for granted, the seemier side of that supposed competition intermittently captures national attention.

This week, the news has been dominated by the arrest and incarceration of 8 MPs from across the political divide on charges of ethnic incitement and hate speech. Amid all the ink that is spilt decrying (and defending) what was said, relatively little is dedicated to examining how our history, our understanding of what Kenya is and the structure of our politics conspire to fan the flames of ethnic bigotry.

In a sense, the furore over hate speech is not really about hate but about tribes. The Kenyan political scene is wholly tolerant of ill-informed and detestable statements about categories people identified by race, gender, sexuality and class. Further, the fuss is not about the existence of ethnic prejudice per se, but about the public expression of the whispered views that citizens are encouraged to hold by politicians.

Even our laws specify this ethnic basis for proscribing hate speech. Section 13 of the National Cohesion and Integration Act under the title “Hate Speech” only criminalizes “threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour … 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.” This is despite the constitution describing its protection of free expression as not extending to hate speech based on “race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.” Thus the fairly common, and abhorrent, statements about gays, women and refugees are perfectly legal provided they say nothing about their victim’s tribe.

In fact, in order to qualify as hate speech, speech must not necessarily be intended to cause hate. That it is likely to do so, whether through recklessness or ignorance on the part of either the speaker or the audience, is enough. Neither does hateful talk about individuals count, unless such will incite tribal hatreds. This essentially protects politicians, but not their supporters from personal abuse (rather similar to the colonial era law in the penal code which criminalizes “obscene, abusive or insulting language” against ones employer but not against one’s employees!). These are quirks born of the wholly understandable preoccupation with preventing ethnic based bloodletting such as was witnessed in the aftermath of the bungled 2007 elections.

It is perhaps not surprising that a nation taking umbrage only public expressions of ethnic bigotry fundamentally sees itself as an arena of existential tribal competition. The idea of politics as managing and exploiting ethnic relations is one the ruling class is happy to peddle as it not only disguises their class-based exploitation, but also allows them to portray the fruits of this exploitation as a benefit to at least some of their victims. So instead of the reality of an elite class stealing from everyone else, we are presented with the illusion of tribes vicariously having a stake in the fortunes of their elites.

The current government “crackdown” notwithstanding, the governing elite and their rivals in the opposition are unlikely to want to fundamentally change this state of affairs. In fact, that President Uhuru Kenyatta has not once stood up to condemn Moses Kuria’s regular outrages, is only outdone by Raila Odinga’s defense of George Aladwa’s equally loose talk. As we approach the 2017 election, it is much more likely that politicians on both sides will continue to whip up ethnic divisions with the tacit approval of their principals.

Evolution of Jubilee

Why Kenyan Presidents Always Have Bad Advisors

A version of this article was published in The Star

Kenyans are a peculiar lot. Even though we love to condemn and demonize the ruling class, we are forever reluctant to accept that any of the individuals that make up that class may themselves be individually bad or inept. Therefore we are constantly making up excuses for their failures.

For example, during the murderous and kleptocratic Nyayo regime, it was common to hear the dictator, Daniel arap Moi, described as a kindly and wise old man who had unfortunately been misled by his coterie of advisors. Mwai Kibaki similarly escaped much of the blame for the deadly rifts his administrative choices deepened within Kenyan society and which set the stage for the bloodletting that followed the disputed 2007 election.

The many fumbles that characterised Uhuru Kenyatta’s tenure have also been laid at the feet of bad advisors. Even his political rivals and critics have tended to lay the blame for his controversial decisions, from making illegal appointments of parastatal heads, to authorising the paying of billions of shillings to briefcase Anglo-Leasing type companies, to ignoring court orders, at the feet of the members of his kitchen cabinet.

The assumption that our rulers only want what’s best for us and are constantly being subverted by the hand-picked groups of courtiers and groupies they bring into office is both curious and delusional. And it prevents us from seeing the real nature of the regimes that continue to oppress and impoverish and marginalize large sections of our citizenry.

Take the discussions over the conviction of one Alan Wadi Okengo on charges of hate speech and for undermining the President’s authority as a public officer. The university student’s obnoxious and virulent postings of Facebook undoubtedly offended many and broke the law. From that perspective at least, his speedy arrest, prosecution, conviction and sentencing for hate speech for calling for the deportation of Kikuyus to central Kenya is to be welcomed.

However, as many commentators have rightly noted, others who have spewed similar hate both online and offline have yet to meet a similar fate. Compare the treatment of Mr Okengo with that of Hon Moses Kuria, who has now twice been in court, charged with a similar offence. While the former was quickly sentenced to jail despite his offer of an apology and retraction, there has been a seeming reluctance to lock up the latter. On the Gatundu MP’s second visit to the courthouse, the prosecution, while declaring that he had broken his bail terms, did not appear interested in having him committed to jail. Further, the legislator has been offered a generous out-of-court deal where he avoids jail time by apologising for and recanting his remarks as well as convening a “stakeholders’ meeting”.

But the pundits seem reluctant to draw the obvious conclusion: that the government is not really interested in fighting hate speech. Rather, it is selectively applying legislation to target hate mongers who happen to be critical of it. So that the fault is not in its actions, but in its intent.

The second charge is even more worrisome. Mr Okengo was faulted for a posting that ridiculed the signing into law of the Security Amendment Act by “silly and bangi (sic) President” and which was then construed as undermining the authority of a public officer. By this ruling, the court has vastly expanded the scope of Section 132 of the Penal Code. It is instructive to remember that this section was enacted in 1952, the same year the colonial government declared and Emergency over the agitation for freedom and independence, and the same year President Kenyatta’s father was thrown in jail. That this law is still on our books more than half a century after independence is an indicator of how little the state has changed since then. The people, in whose name it governs, are still seen as the primary enemy and its laws still seek to protect the elite in power from the citizenry and to constrain any attempt by the latter to propagate unflattering opinions of the former.

The Security Laws Amendment Act, which was the trigger for Mr Okengo’s rants similarly betrays the nefarious intent of the government, criminalising as it does, independent reporting of terror incidents and amending the Public Benefit Organisations Act -which is yet to be gazetted nearly two years after its adoption- to allow for the classification of civil society groups (the criteria is to be determined later but given recent attempts to amend the same Act, one need not be a genius to guess what it will be).

Creating fear and compliance among citizens, media and civil society is the ultimate goal of this regime. This is to be achieved by rolling back the rights and freedoms gained over the last quarter century and reconstituting the untethered, oppressive surveillance state of the Nyayo era. Thus, when Uhuru Kenyatatta and his mandarins talk of improving security, what they really mean is securing themselves and their positions from the rest of us.

But the personal responsibility of the head of state for ineptitude, corruption and despotism is one of the great unmentionables of Kenyan politics. It is that which shall not be named, perhaps because in naming it, we fear that we would call it forth and deprive ourselves of the comforting delusion that he cares. The father of the nation must remain godlike, unblemished, peerless, all-knowing and all-seeing, a veritable repository of wisdom an altruism.

 As Kenyans, we must abandon the idea that those who take up the reins of power are necessarily doing so because they care for the rest of society. We must learn to be more critical and less accepting of the propaganda we are fed. As James Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.” It is clear that we are not governed by angels and thus we must all oppose the attempts by President Kenyatta and his court to eliminate “the external and internal controls” on the government.

Why Limiting NGO Funding Is Not Just About The ICC Cases

A version of this article has been published in The Star.

It is easy to dismiss Moses Kuria. The Member of Parliament for Gatundu South has pretty extreme and downright stupid opinions on issues ranging from the effects of foreskin on mental faculties to the relationship between the opposition CORD coalition and the terror group, Al Shabaab. However it would be a mistake to not keep an eye on what he and his ilk are doing in Parliament.

Recently he has vowed to reintroduce an amendment to the Public Benefit Organisations Act to have non-governmental organisations whose foreign funding exceeds 15 percent of their budget classed as foreign agents. In doing this, he is resurrecting a similar bill that was introduced and withdrawn last year that also sought to limit foreign funding for local NGOs to 15 percent of their budgets. The move seems to be part of a determined effort by the ruling Jubilee coalition, whose manifesto does call for such a cap, to bring to heel the organised civil society groups that have been the bane of the UhuRuto candidature and administration. 

The proximate cause of this, as identified by Ngunjiri Wambugu in his Monday column in The Star, is the prosecution of the President and his deputy before the International Criminal Court. Mr Wambugu claims that it is Kenyan civil society that provoked hostilities with the government by “criminalizing the state” though he does not explain exactly what he means by this. Apparently he believes that the fact that the state was itself implicated in the 2007-8 post election violence and the push by civil society to secure accountability for this is equivalent to delegitimizing the state. Thus, he argues, the Kenyan state is responding, albeit in a misguided fashion, to an (unwarranted) attack.

This analysis ignores several facts of history. It was not civil society that opened the door to the Hague. In fact, as the violence was unfolding, the Party of National Unity and the Orange Democratic Movement each threatened to institute proceedings against the other at the Hague. Further, the Waki Commission, which was established as part of the National Accord that put a stop to the violence, itself recommended that the ICC be brought in if the political elite was unable or unwilling to establish a local process to try high-level suspects. The loud shouts of “Don’t be vague, it’s The Hague” did not come from civil society either but from the political elite themselves. The Deputy President himself was one of those who rejected a local process to try perpetrators.

Further, as Mr Wambugu notes in passing, the war of the state against organised civil society did not begin in the run up to the 2013 election. It has been part of a wider attempt by the Kenyan elite to avoid any manner of scrutiny and accountability for its penchant to impoverish and brutalise the population. It is important to make this distinction for outside the arena of accountability, the state has actually been instrumental in encouraging the growth of NGOs.

As Jennifer Naomi
 Brass notes in her PhD thesis, titled Surrogates forGovernment? NGOs and the State in Kenya, both local and international NGOs have a long history in Kenya.
Since independence, the government has encouraged the development of indigenous not‐for‐profit organizations, self-help societies and community-based organisations. This happened even as the state was seeking to restrict citizen participation in politics and government. In this way, as the title suggests, NGOs did become surrogates for government, offering services where government was not either unable and unwilling to do so. Through them, the reach of the state was extended and “in many ways,” she avers, “NGOs have had a positive impact on government and their existence has helped to make the Kenyan state stronger.”

The government was happy to piggyback on this as long as NGOs stuck to “development” and did not question the goings-on in the halls of power. They were expected to deliver services to the people, but not to introduce subversive and un-African ideas of democracy and accountability. It is precisely when the started to do so, especially with the emergence of governance NGOs in the 90s that the state begun to decry foreign funding and foreign agendas.

Of course, as Mr Wambugu notes, it was a fight the state was doomed to lose. However, the cooption of many of the leading lights of civil society into politics and government in 2003, left the movement floundering and blurred the distinction between the political NGOs and those competing for state power. It is this blurring that has seen civil society, just as happened with the church and to a lesser extent, the media, vulnerable to accusations of being merely a stepping stone to political power and thus of having nefarious schemes of regime change.

In the last decade, though, many governance NGOs have tried to reclaim the pedestal they once had and to refocus their efforts to core issues of governance. However, we still have a political elite, much of it infused with their former colleagues, that is not interested in enduring scrutiny or having its opportunities to “eat”extinguished. This elite has focussed its guns on preventing the re-emergence of civil society as a real check on government excess. The focus, as we are once again reminded daily, should be on “development” and “peace” and that we should guard against foreign agendas lurking around every corner.

In the end, this is what Moses Kuria’s proposed amendments are about. Not just the doomed cases at the Hague, but also protecting the avenues for patronage and enrichment at home. It is clear that the changes are not meant to make the sector more transparent, since all Mr Kuria would need to do is insist that the PBO Act- which already calls for NGOs to publish their audited accounts annually- is gazetted and implemented. They are in fact meant, as he himself acknowledges, to continue the delegitimization of, according to Ms Brass, organisations "the overwhelming
 majority of whose employees, leaders and advocates in Kenya are Kenyans, advancing Kenya‐specific social agendas –
 even when their funding is foreign".

So we should not dismiss Mr Kuria, tempting as that may be. We should take him seriously when he says that the goal of his amendments is to "control civil society".  We should all pay attention if we are to prevent a slide back to the dark days of the KANU dictatorship. As Plato once said, “the price good men pay for indifference to public affairs is to be ruled by evil men.”