Why State is finding it harder to prosecute hate mongers

A delay by the Attorney-General in preparing a law that could be used in charging those accused of propagating hate speech is providing inciters with an open field to make inflammatory statements.

Despite the high-profile arrests which are accompanied by drama whenever one is accused of making inflammatory utterances, a review of past cases shows little evidence of people being punished.

Furthermore, a high threshold set by the existing laws on determining whether someone is guilty and a lack of clarity on how technological evidence can be admitted in court continue to give prosecutors a hard time in nailing suspects.

With 2022 elections politics gathering steam, it is expected that more politicians will find themselves on the wrong side of the law due to their loose tongues.

Yet, most hate speech cases have been dropped due to lack of evidence; others because the prosecution was unable to produce witnesses, especially where videos of the alleged utterances were picked on the internet.

Since 2009, when the law on electronic evidence was assented to, judges and magistrates have been cautious about admitting evidence stored electronically following technological advancements. Most of the hate speech cases based of video evidence fail when prosecution does not authenticate the source of a clip.

Walk free

Additionally, some of those accused of hate speech have managed to walk free after challenging the constitutionality of the very law that makes it criminal to spew ethnic hatred saying it goes against the spirit of the constitution.

According to Section 96 of the penal code, those found guilty of propagating hate speech are liable to imprisonment of a term not exceeding five years. However, since the new constitution was promulgated 10 years ago, Kenya is yet to convict a single political leader for inciting ethnic hatred.

“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 guilty of an offence,” says the law.

Each year, a number of politicians are dragged to court for making inflammatory utterances. This week’s arrest and charging of Emurua Dikirr MP Johanna Ngeno has added to a long line of political leaders taken to court over hate speech.

They include 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, Suna East MP Junet Mohammed, Kilifi Woman Rep Aisha Jumwa, Florence Mutua of Busia and former Kitutu Masaba MP Timothy Bosire.

Interestingly, all the above politicians were acquitted by the courts for various reasons. The latest to be found innocent was Mr Muthama, in January. He had been charged with incitement to violence over an issue that happened in 2015.

The vocal politician was accused of making inflammatory utterances during a Cord rally at Uhuru Park after he questioned the government’s willingness to deal with graft, especially at the National Youth Service.

In court, his lawyer John Khaminwa, argued that the incitement to violence was contrary to Section 96 of the Penal Code and offended the right to a fair trial. 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.”

While acquitting Mr Muthama, a three-judge bench comprising Justices Jessie Lessit, Luka Kimaru and John Mativo termed that particular section unconstitutional as it shifts the legal and evidential burden of proof to an accused person from the prosecution.

“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.

Citing Article 49 (1) (a) (ii) and Article 50 (2) of the constitution, the judges said it is always the prosecution’s duty to establish its case in a criminal trial.

Additionally, they directed the Attorney-General to prepare a Bill to be presented to Parliament with a view to remedying the deficiency in the said section of the penal code.

Incitement to violence

With that, Mr Muthama walked free. Makadara MP George Aladwa and ODM party activist Japhet Muriira Muroko also benefited from the High Court’s declaration of the penal code on incitement to violence and disobedience as unconstitutional.

As it stands, the wider effect of the judges ruling is that until Parliament passes another law, it would be difficult for the State to get anyone jailed for spewing hate speech.

It is now nine months since the AG was directed to prepare a new law and send it to Parliament. Saturday Nation was unable to get a response from the State Law Office on the progress of making the law that would make it easier for prosecutors to get a conviction.

Meanwhile, the National Cohesion and Integration Commission (NCIC) has faulted Kapseret MP Oscar Sudi over his remarks against former First Lady Mama Ngina, saying it is investigating the matter.

"The commission is concerned with the utterances that have caused intolerance among a section of Kenyans," NCIC said.

Meanwhile, President Uhuru Kenyatta returned fire with fire, asking Mr Sudi and Ngeo to stop dragging his mother into politics.

“Those who are looking for me by insulting my mother should stop. They should leave my mother alone and out of politics,” President Kenyatta said in Ruaka on Wednesday.

[email protected]