GHAI: Hate speech law is problematic to describe and free speech is critical

SOME LEGAL HISTORY

Our first “hate speech” law emerged from the 2007- 08 post-election violence.

Not surprisingly, the emphasis was on ethnic hatred. The National Cohesion and Integration (NCIC) Act, passed before the new Constitution, has a wide definition of hate speech, though it must involve “threatening, abusive or insulting” language and either that the speaker intended to stir up ethnic hatred, or ethnic hatred was a likely result.

Article 33 of the Constitution says that the right to freedom of expression does not extend to— … advocacy of hatred that “( 2 )(d)(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified or contemplated in Article 27( 4 )”.

Note that it is not about expressing your hatred but about persuading others to hate. And the reason for the hate must be because of some personal characteristic like ethnicity, or others under Article 27 like gender, disability, age or religion.

There is also a statement that protection of freedom of speech does not cover “hate speech”.

This first appeared in the Committee of Experts’ first draft in 2009 - I suspect to protect the provision in the NCIC Act.

How does Article 33(2) work? Think of each Article in the Bill of Rights as a sort of umbrella. It protects your rights to the topic of that Article – life, dignity, equality, to strike etc. – and expression.

But Article 33 is different from most because it shapes the umbrella to exclude hate speech, and advocacy of hatred from its protection.

The umbrella of Article 33, like most Articles, allows some (small) holes to be made by law - that is law that limits the right to serve some other important purpose (using the detailed approach of Article 24 ).

This shaping of the umbrella in Article 33 is not the same thing – any law about hate speech etc. does not need justification under Article 24.

The shaping of the umbrella does not prohibit other holes in the umbrella being made by law. And it does not by itself prohibit hate speech.

That must be done by ordinary law. “Hate speech” appears in several other laws, concerning media, elections, basic education, police and the National Youth Service, usually as a principle or part of a code of practice but not as crimes.

PROBLEMS OF DRAFTING

Drafting problems usually reflect thought problems. The main problem is “hate speech”.

A different phrase in law is assumed to mean something different. In June 2010, too late to prompt any change in the new Constitution, the NGO Article 19 rightly commented that Article 33, with three concepts of harmful speech, “raises questions about the boundaries between them, particularly the “hate speech” (usually a popular term, rather than a legal one) and advocacy of hatred”.

Although our Article 33 took some inspiration from South Africa, its Constitution has a more limited provision: “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

Advocating hatred is not enough; to be free from the human rights umbrella, there must be incitement to cause actual harm (their human rights commission has said the harm can be psychological).

Our Article 33 is unclear about whether actual incitement to cause harm is required, especially with its “or based on any ground of discrimination … in Article 27( 4 )”.

I would argue that provisions in a Constitution restricting the scope of protection given by a right should be used very rarely. We have Article 24, which allows the courts to scrutinise law limiting rights.

The reducing the umbrella approach means the courts have much less possibility of scrutinising such law.

But they do a much better job of this than Parliament or other lawmakers. I believe that courts can still ask, “Is this really hate speech?” – but having no definition of that phrase in the Constitution makes it harder.

But they must not allow lawmakers to shield any provision in an Act from court scrutiny just by labelling it as “hate speech.”

It is important to remember that the right in question is freedom of expression – one of the most important in a democracy and deserving the utmost protection.

The NCIC Act provision is not entirely satisfactory. Why does the language have to be “threatening, abusive or insulting”? A person could stir up hatred while using quite non-abusive, even apparently scientific, language.

Secondly, the section says a person is guilty if ethnic hatred was a likely result – even if they did not intend this. Serious offences should apply only to people who intended harm, or at least didn’t care.

True, the words used are evidence of the intention, but other evidence is usually needed.

GAPS IN THE LAW

On the other hand, our law does not cover all the situations of possible hate speech. Advocacy of hatred (or hate speech) on the basis of gender or disability does not seem to be a crime under Kenyan law.

Yet clearly the Constitution anticipated that such law would be passed. Indeed, it might be easier to enforce such law, since politicians would be less likely to be the offenders.

ENFORCEMENT PROBLEMS

The government’s National Action Plan on Hate Speech comments that: “Political interference has influenced the enforcement, investigations and/ or judicial processes during the processing of hate speech cases.”

And it says “prosecution witnesses on hate speech cases face intimidation from perpetrators or their representatives, or are influenced to withdraw their testimonies.”

The Commission itself says, “The judiciary experiences a backlog of cases exceeding the one-year timeline. This causes hate speech cases to drag for a long time. resulting in low public trust.”

IS LAW THE BEST APPROACH?

I feel some doubt whether these enforcement problems can be solved. Certainly it is not just a matter of changing the law.

Unfortunately, politicians and their lawyers are experts in delaying court cases, and in other ways of undermining the legal system.

And at the end of the day exposing what they have done and said and giving it more publicity may be counter-productive.

They know what will make them popular. Developing a society in which such language is unacceptable depends on other things, like leadership that gradually helps to move the country away from heavy reliance on ethnicity in politics, giving politicians an incentive to invoke differences.

And if there is violence prompted by politicians or anyone, then we have law to deal with it. We need law to make Article 27 effective.

That is on equality and non-discrimination. In her book on Equality in Kenya’s 2010 Constitution, Victoria Miyandazi comments on the difficulties of applying the “multiple and interrelated conceptions of equality in the Constitution”.

We need an Equality Act that would clarify these conceptions, and give guidance to employers and others who are required to respect, protect, promote and fulfil Article 27 – as well as Article 28: “Every person has inherent dignity and the right to have that dignity respected and protected.”

The criminal law cannot build the Kenya we want in which everyone and every group and community is respected, and vilification and “threatening, abusive or insulting” language are simply not accepted and are actually counter-productive.

I often say we need a national debate on law reform – and more than public participation when passing laws.

Interestingly, South Africa recently passed the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.

This tries not only to punish but also to ensure that the police are trained well on such cases, and it also says that various relevant bodies “have a duty to promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences.”

They did have a major public debate that we could learn from.