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.