Tough proposals to curb hate speech are yet to be considered by the National Assembly even as the country gets into an electioneering period where politicians spew divisive messages.
A review of the court cases shows that the trials collapse due to lack of evidence and legal technicalities.
The National Assembly Committee on Administration and National Security had proposed a number of tough measures to the National Cohesion and Integration Commission (NCIC) Act in February last year.
The proposals jointly developed by the committee and the commission, push for the increase of the imprisonment period of the guilty from the current maximum of five years to a minimum of five and a maximum 20 years with a minimum fine of Sh1 million.
Also contained in the proposal is that those facing hate speech trials will cease holding public office until their cases are heard and determined. And if found guilty, one is permanently barred from holding any public office.
The lawmakers also agreed to entrench a proposal seeking to make it an offence to disobey a summons by NCIC, a move aimed at making the commission more powerful in discharging its mandate.
However, almost one year later, little progress has been made in consideration of the proposals with the security committee blaming NCIC for not coming back to them.
Homa Bay Town MP Peter Kaluma, a member of the security committee, Saturday told the Nation that they had approved all the proposals and NCIC was just to clean them up but never reported back.
Mr Kaluma, who was appointed by the security committee to lead a sub-committee consisting of the legal team from the NCIC, and come up with amendment areas says the matter is now with the cohesion committee.
“We approved all the amendments and prescribed even heavier penalties for hate mongers. NCIC was to input the aggravated amendments and return the legislative proposal to be published. We have never heard from them since then. I hear they have chosen to transact the bill through the Committee on Equal Opportunities. We wish them well,” Mr Kaluma said.
However, NCIC commissioner Danvas Makori told the Nation that they adopted everything that the security committee proposed but decided to merge them with another bill that was also in the Senate.
“We approved everything as suggested by the security committee. Since the Senate also had another bill on NCIC, we decided to consult them for concurrence so that we have one bill containing all the amendments to be considered by the National Assembly,” Dr Makori said.
He said the commission had a meeting with both Speakers of the National Assembly and the Senate on the bill and they approved it.
The chairman of the National Cohesion and Integration Committee of the House, Mr Maina Kamanda, said that they had already dispensed with the matter and are waiting for the proposals to be considered by the House.
“We had given the Speaker and the House Business Committee the proposals to schedule them in the Order Paper for debate. It is one of the agenda listed for consideration when the House resumes its sittings,” Mr Kamanda said.
“This is something that the House can debate within a day and pass it,” Mr Kamanda added.
Since its inception more than 12 years ago, NCIC is yet to secure conviction of a political leader over hate speech and incitement offences.
A review of the court cases shows that most of them collapse. Though on its website the commission indicates it has investigated 96 cases and solved 3,000 others, those arraigned on accusations of propagating hate speech have been walking free after defeating the state prosecutors.
To support the commission's mandate, Chief Justice Martha Koome has pledged to set up five special magistrate's courts to focus on hate speech cases. This is to provide expeditious conclusion of cases.
The review of past cases also reveals no evidence of politicians being punished for inflammatory remarks despite highly publicised arrests and interrogations.
Among the politicians who have since been acquitted include Gatundu South MP Moses Kuria and former Kiambu Governor Ferdinand Waititu. They faced charges of incitement to violence.
But the court ruled that video evidence produced by the prosecution incriminating the pair was not authentic to warrant their conviction.
The court also ruled that it was not satisfied that the utterances said to have been made could result in incitement to violence.
The magistrate further pointed out that the original video or material used to record it and transcripts were not presented in court.
The prosecution had said Mr Kuria on June 13, 2016 made remarks alluding to the physical injury and death of ODM chief Raila Odinga at the Kasarani gymnasium.
Mr Waititu, the prosecutor said, also alluded that it was desirable to kill the then leader of Coalition for Reforms and Democracy (Cord).
Mr Kuria was acquitted again in 2020 in another case involving two counts of incitement to violence.
Together with his Makadara counterpart George Aladwa, former Machakos Senator Johnstone Muthama and political activist Japhet Muriira Muroko, their trial collapsed after the High Court declared section 96(a) of the penal code unconstitutional.
A three-judge bench comprising Justices Jessie Lessit, Luka Kimaru and John Mativo declared the section of the law unconstitutional for being in conflict with provisions of a fair trial and fair hearing.
It was held that the section is unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution.
"A reading of section 96 (a) of the Penal Code shows that the phrase ‘the burden of proof whereof shall lie upon him’ shifts it to an accused person before the basic facts have been established. This in our view excludes it from the scope of section 111 and 119 of the Evidence Act," said the judges.
The court found that the said section of the law offends the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”
They said the law infringes and transgresses on presumption of innocence of an accused person in a criminal trial.
The section was also found to infringe a cluster of rights associated with a fair trial. These are the general right to a fair trial, the privilege against self-incrimination, the right not to be a compellable witness against oneself and the right to silence guaranteed in Article 49 (1) (a) (ii) and Article 50 (2) of the constitution.
Another politician, who faced hate speech charges and got acquitted, is Likoni MP Mishi Mboko.
She had been charged with incitement to violence and spreading ethnic hatred over her remarks calling for a revolution in the country. She was also alleged to have issued a threat to some communities.
Her trial collapsed in 2017 for lack of evidence after the prosecution failed to prove its case beyond reasonable doubt.
Also set free is Cherangany MP Joshua Kuttuny who was released following instructions from the Attorney-General office.
Mr Kuttuny was accused of making incitement remarks in 2010. He was cleared after the prosecution said it had been instructed by the AG's office to withdraw the case under section 87 (A). At the time prosecutors were under the office of the AG. It was said that the AG recalled the case file to peruse statements of the witnesses.
