Jailing MPs Won't End Hate Speech. Here's What Will.

This past week, national attention has focused on 8 MPs charged with contravening hate speech and incitement laws, who suffered the rare misfortune of being denied bail and ended up spending all of three nights in jail. After their release, they confessed that the ordeal had precipitated a change of heart and that they are now transformed into paragons of tolerance and brotherly love. If only it were that easy!

Ethnic incitement is an ugly beast that rears its head in every election cycle and is a product of, paradoxically, our obsession with the politics of ethnicity and our concomitant fear of the place to which that road inevitably leads.

It is no coincidence that it is much more pronounced at election time. Elections themselves are primarily framed as zero-sum contests between tribes for a share of government revenues and jobs -the proverbial “national cake”- and not between ideas of how to improve lives of ordinary Kenyans. This framing privileges the problems politicians face in accessing national office and the opportunities for plunder that come with it, above those of the people, whose main interest is in securing government services.

It follows then that any serious attempt to ameliorate the dangers needs to address the basis of our politics and political competition.  Kenya is more than just a collection of feuding tribes. That is just one way of imagining the nation. If anything, the problems of ordinary folks, from unemployment to healthcare pay little heed to ethnic cleavages. And many of them are caused and exacerbated by the preying of a multi-ethnic elite. That the class inequalities within any particular ethnic community far outstrip those between tribes is testament to this.

This is neither to say that horizontal discrepancies between tribes in accessing government services do not exist nor that they are unimportant. It is clear that governing elites have perfected a system of patronage, effectively holding communities hostage to the political fortunes of self-declared “tribal kingpins”. The economic and political marginalization and exclusion of regions populated by ethnic communities that have no share in government reinforces the logic that to avoid a similar fate, tribes must have one of their own in power and consequently the view of communities as factories competing for the production of public officials.

Yet the concept of such officials essentially doing their dirty work on behalf of the tribe ignores the fact that the limited benefits accruing to their particular regions from the diversion of national resources are scant reward for the sacrifices they make. They do little to ameliorate the impoverishment caused by kleptocratic governance. The looting of taxes via scams such as Goldenberg and Angloleasing does not discriminate between tribes. Neither are the proceeds funneled to tribal funds. Rather, as the Kroll report demonstrated, the loot is secreted abroad into the personal accounts of the politicians and a small circle of family and friends.

Still, a little being better than nothing, such favoritism does help to cement the idea of elections as an arena where tribes fight for their turn at the dinner table, rather than as a means to discipline errant officials. It focuses energies on ethnicity rather than performance and explains the phenomenon of communities rallying around tribal "kingpins". Politicians become synonymous with "leaders" and all power is increasingly concentrated within the political sphere rather than dispersed across society.

A different conception of what Kenya is could turn this logic on its head. An understanding of class and ideological rather than ethnic affiliation would create possibilities of alternative basis for articulation of group interests and thus political mobilization. As opposed to parties that are little more than tribal enclaves, political entrepreneurs could create multi-ethnic coalitions composed of farmers or labor or social liberals to take on entrenched interests.

This is not an easy task but it is one that holds great promise. That it would require a greater focus on the bread-and-butter issues that matter to ordinary citizens rather than a fixation with power and patronage is just one. It would also incentivize inclusive rather than exclusive political platforms, and broaden rather than narrow the constituencies politicians would need to appeal to. It would transform party manifestos from mere rhetorical flourishes to actual instruments of accountability and raise the quality of political debate in the country.

More relevantly, people choose their weapons and tactics according to the fights they expect to have. When wrapped up in identity, issues and threats can seem intensely personal, even existential and concerned parties ultimately irreconcilable. Responses will tend to be extreme and violent. Hatred and incitement will almost inevitably follow. However, when framed as abstract ideological battles, as contests of wit rather than spit, the issues can appear far less threatening and responses can be far more rational and deliberative.

So while it is important to enforce laws against ethnic incitement, and to prosecute hate mongers, having politicians spend a few nights in prison will not end it. Only by shifting the basis of our politics from mutual fear to solving common problems can we reduce the incentives for ethnic mobilization and sustainably change behavior.

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.

Covering or Covering Up ? How Kenyan Media Betrays Kenya

On the eve of Madarka Day, CNN’s Robyn Kriel dropped bombshell. Her investigations had revealed that the Kenya government was engaged in covering up the truth surrounding the deaths of at least 141 Kenyan troops in El Adde, Somalia. The story made headlines around the world. However, here, where it should have mattered most, it was mostly ignored by the local press.

Why? In January when the slaughter happened, it was on the front page of every newspaper. But soon thereafter, it became clear that the media was being careful not to raise too many uncomfortable questions. Over the course of the last 6 months, even as further revelations, including Al Shabaab’s release of footage of the attack, showed gaping holes in the official version of events, the press has demonstrated little inclination to pursue the story. Though long whispered in newsrooms, that it took a foreign journalist to provide the first serious look at potential casualty numbers is most telling.

As I wrote this, news broke of yet another Al Shabaab attack, this time on an Ethiopian-manned base in Somalia. This time, the Kenyan media had few qualms about speculating on casualties or handing the terrorists a propaganda coup, the very excuses it has offered for not pursuing the El Adde story. That the coverage of the attack on the Ethiopians was carefully scrubbed of any mention of El Adde despite the obvious similarities, betrays their real concern: sparing KDF and government blushes.

Meantime, official statements about other events in Somalia continue to rampage across the headlines unchallenged. Kenya Defence Forces’ claims about battlefield successes against the Al Shabaab are reported as gospel truth, even when the facts are in dispute. It is a most curious and intriguing stance taken by a media fraternity that is widely acclaimed as one of the most vibrant on the continent. In truth, the accolades have routinely tended to overstate our media’s autonomy and gusto while underplaying its short memory and its marked tendency to kowtow to politicians and officialdom.

The coverage of the current impasse over electoral reforms and over the fate of the Independent Electoral and Boundaries Commission also highlights some of these shortcomings. Since the 2013 general election, it has been obvious to anyone who cared to look into it, that the electoral system is in dire straits. Its performance (as well as that of the Supreme Court) in that poll left plenty to be desired and a sharply divided country. Yet in the last 3 years, the media has not prioritized the telling of this story. This despite the fact that a clear public interest exists: violence has accompanied all but one election in the multiparty era and the bungled 2007 contest almost tipped us into the abyss of anarchy and civil war.

Indeed, it was not until politicians exploited the situation to create a crisis that the media collectively took note. And even then, the reporting has been little more than an uncritical regurgitation of the opposing sides’ statements. Little energy is expended in articulating the issues of disagreement and whether these reflect simple party political and individual interests or are driven by a serious desire and plan to protect the national interest. Is the dispute about acquiring or preserving jobs for politicians or about fixing the broken system?

The media’s preoccupation has been with the political battles, with picking the winner and losers, rather than with the substance of the fight. A consequent failure to distinguish smoke from fire has allowed the politicians to shape the public discourse in self-serving ways that obscure what’s really at stake. This is how we have ended up with a national debate about the rather absurd proposition that the constitution somehow forbids dialogue or the equally preposterous idea that IEBC commissioners can be fired by physically ejecting them from their offices in Anniversary Towers.

Just as with the tragic El Adde debacle, Kenyan media has mostly been a forum for obfuscation and misdirection rather than a source of light and understanding. It has betrayed the Kenyans who, at great cost in lives, took on autocrats to defend the freedom it profits from and sadly abuses. When it abdicates its agenda-setting role and conspires in the silencing of voices critical of government; when it would rather cover up than expose official misdeeds; when it becomes a megaphone for Orwellian doublespeak; then a free media becomes an instrument of oppression and tyranny rather than a necessary bulwark against it.

Kenya's Politics Of Crises and Forgetting

Earlier this week, on the eve of Madaraka Day, history paid Kenya another visit. Online photos of CORD principals, Raila Odinga and Moses Wetangula in a jovial meeting with President Uhuru Kenyatta and his Deputy, William Ruto, at State House, Nairobi caused a bit of a stir. But it shouldn’t have. As I explained last week, we have been here before.

Political crises have been a near-constant feature of Kenya’s post-colonial history, and especially since the agitation for electoral and constitutional reform began in the 1980s. Politicians have perfected the art of taking the country to the brink of the abyss of violence and anarchy and pulling back at the last minute.  It is a callous calculation, where violence and death are used as negotiating tools. If, as Carl von Clausewitz asserted, “war is the continuation of politics by other means” in Kenya, crises and bloodshed signal not a breakdown of the political process, but how it is inaugurated.

The script is always the same: Opposition demands talks on reform or a redress of grievance. The government refuses. Demagogues on both sides polarize public opinion, mostly along ethnic lines. With few options, the opposition appeals to the street to force the government to give in. The street demonstrations are met with police violence and after enough Kenyans have bled and died, the government gives in and agrees to talks.

This is politics reduced to a staring contest, where the goal is not to avoid crises but to ignite them. It is a politics that is managed via crisis, in which Kenyan citizens are not the end, but as the means of contestation. It is a politics obsessed with the problems and welfare of politicians, not so much those of the people who are reduced to pawns in a game of elites.

There is no true animosity between the main protagonists, despite the hateful rhetoric employed to galvanize their supporters. In the end, the politicians remain friends and business colleagues and country club mates. The politics they have created and perfected eschews permanence and commitment, whether to principles, policies, friends or enemies. The only defining characteristic is ambition.

Of necessity, in rejecting permanence, it also rejects history. Who, after all, wants to be reminded of their hypocrisies? Or that their current BFF was the declared mortal enemy of all Kenyans in the last election cycle? In kowtowing to the politicians, Kenyan media also reflects much of this aversion to history and context. Political events and crises thus seem to spring out of nowhere, without history or context, and just as quickly disappear into nothingness without actual resolution once the politicians have gotten together to rearrange their seats at the table.

This is what is happening with the current dispute over the fate of the IEBC commissioners. Despite the fiasco witnessed in the 2013 election, there has been little discussion about it in the last three years. Neither the opposition nor the government have shown much interest in addressing the failures witnessed during the election or the problems highlighted by the subsequent petitions filed against the 2013 results, especially the petitions against the Presidential poll. Now, with just over a year to the election, precipitating a crisis appears the only means our politicians can imagine to address the issue.

Historical amnesia is apparent in the way they have proposed to drive the talks forward. Apparently, a deal has been reached in which each side will nominate five people to a 10-member committee, composed solely of Parliamentarians, to conduct the talks. This would be little more than a resurrection of the 1997 Inter Parties Parliamentary Group process which, as I discussed last week, then President Daniel Arap Moi used to blunt the push for reform by excluding all other interested players, especially those from civil society.

So today, as the country breathes a sigh of relief, the politicians have put yet another one over us. Once again they have successfully gotten us to bleed over their problems and ignore our own. No wonder they seemed so giddy at their State House get-together.