That Director of Public Prosecutions (DPP) Noordin Haji was compelled in the past few days to urge police to hurriedly arrest politicians spewing hate speech shows how difficult it is to tackle the crime.
Yet despite the high drama that ensued when police arrested Meru Senator Mithika Linturi and the DPP also ordered investigations against Kitutu Chache MP Richard Onyonka, Kericho Senator Aaron Cheruiyot and politician Abubakar Amana, Kenya lacks a law that would put behind bars propagators of hate speech, allowing offenders to go free.
With the highly charged political environment ahead of the August elections, indications are that more and more politicians will find themselves dragged to court because of their loose tongues.
As has been the case in the past, many other cases will end after suspects record statements with the police, and even for those that progress to prosecution, chances of conviction are remote.
And apart from the suspects who have perfected how to exploit legal loopholes, the Attorney General, the National Cohesion and Integration Commission (NCIC), prosecutors and the police are also to blame for the impunity.
Article 33 (2) of the Constitution says: “The right to freedom of expression does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred.”
Section 13 of the National Cohesion and Integration Commission Act says: “Any person who propagates hate speech or incites ethnic hatred shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years.”
Furthermore, Section 96 of the Penal Code says: “Any person who, without lawful excuse utters, prints or publishes any words implying or calculated to bring death or physical injury to any person or community or to lead to the damage of property is liable to imprisonment of a term not exceeding five years.”
But though the law is clear on what constitutes hate speech and prison terms outlined for those found guilty, Kenya is yet to convict a single political leader for inciting ethnic hatred since the new Constitution was adopted 10 years ago.
The high threshold set by existing laws in determining if someone is guilty and the lack of clarity on the admissibility of electronic evidence like videos give prosecutors a hard time when they charge someone in court, legal experts say.
Law on electronic evidence
“From what we have seen so far, most hate speech cases are failing because of lack of evidence and an inability by the prosecution to produce witnesses, especially if someone is arrested due to utterances that are made in a video on the internet,” says lawyer Nickson Momanyi.
“Additionally, the burden of proof lies on the prosecution to prove that the utterances made by the accused can incite people to hatred, war or destruction of property, which is difficult.”
Since 2009, when the law on electronic evidence was enacted, the interpretation of what can be accepted by the courts as evidence has been problematic for prosecutors.
In cases where suspects are arrested after a video showing them making inflammatory statements goes viral on the internet, judges and magistrates have maintained cautiousness about admitting evidence stored electronically.
Most of the hate speech cases based on video evidence fail when prosecutors do not authenticate the source of a clip. For example, when former Kuria MP Wilfred Machage was arrested in 2010, Nairobi chief magistrate Gilbert Mutembei set him free, saying that the certificates required to make the video clips that captured him had not been provided to the court.
Former Machakos senator Johnson Muthama was also acquitted due to a technicality in the law. The outspoken politician had been accused of making inflammatory utterances at a rally in Uhuru Park in 2015.
He had questioned the government’s willingness to deal with graft, especially at the National Youth Service.
“The Act says that the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class or community,” Mr Khaminwa argued.
Acquitting Mr Muthama in February 2020, a three-judge bench comprising justices Jessie Lessit, Luka Kimaru and John Mativo described that section of the Penal Code unconstitutional as it shifts the legal and evidential burden of proof from the prosecution to an accused person.
“It is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt,” ruled the judges.
In their ruling on January 29, 2020, the judges directed the Attorney-General to prepare a bill to be presented to Parliament with a view to remedying the deficiency in the relevant section of the Penal Code.
It’s not only the AG who has been sleeping on the job. NCIC, too, has dithered on proposals to grant it more teeth to bite offenders.
Tough proposals to curb hate speech are yet to be considered by the National Assembly and MPs blame the NCIC for the delay.
The Administration and National Security Committee had proposed several additions to the National Cohesion and Integration Commission (NCIC) Act in February last year.
Among them is raising prison terms for offenders from the current maximum of five years to a minimum of five and a high of 20 years and a low fine of Sh1 million.
At a meeting in Mombasa between lawmakers and NCIC, the two sides also agreed to ensure that hate speech cases are completed within six months.
Another proposal is that offenders cease holding public office until their cases are determined. And if found guilty, they will be permanently barred from holding any public office.
Lawmakers also agreed to entrench a proposal seeking to make it an offence to disobey a summons from NCIC, a move aimed at making the agency more powerful in discharging its mandate.
But almost one year after the proposals were put forward, little progress has been made in adopting them, with lawmakers blaming NCIC for the delays.
Homa Bay Town MP Peter Kaluma, a member of the committee, told the Nation yesterday that the panel had approved all the proposals and NCIC was to refine them but never reported back.
Mr Kaluma, who led a sub-committee that included the legal team from the NCIC that was to come up with amendments, said the matter was with the cohesion committee.
Penalties for hate-mongers
“We approved all the amendments and prescribed even heavier penalties for hate-mongers. NCIC was to input the aggravated amendments and return the legislative proposals to be published,” he said.
“We have not heard from them since. I hear they have chosen to transact the bill through the Committee on Equal Opportunities. We wish them well.”
But NCIC commissioner Danvas Makori told the Nation that they adopted all the measures that the security committee proposed but decided to merge them with another bill that was also in the Senate.
“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 NCIC met with the Speakers of the National Assembly and the Senate on the bill and they approved it.
“We had given the Speaker and the House Business Committee the proposals to schedule it in the Order Paper for debate. It is one of the agenda listed for consideration when the House resumes its sittings,” Mr Kamanda said.
Until then, the long list of politicians whose utterances have pushed them to the wrong side of the law, but still got away, continues to grow.
They include Emurua Dikirr MP Johana Ngeno, former Machakos senator Johnson Muthama, Gatundu South MP Moses Kuria, Makadara MP George Aladwa, Likoni MP Mishi Mboko, former Kiambu governor Ferdinand Waititu and Cherengany MP Joshua Kutuny.
Others are former Roads assistant minister Wilfred Machage, Mt Elgon MP Fred Kapondi, Kapseret MP Oscar Sudi, Suna East MP Junet Mohamed, Kilifi Woman Rep Aisha Jumwa, Florence Mutua of Busia and former Kitutu Masaba MP Timothy Bosire.
