Kenya Hate Speech Vs Free Speech

It is undeniable that the Internet is changing the way we live; we rely on it for communication, information, entertainment and politics. We tap into it for the ability to reach beyond our physical boundaries and broaden our horizons . If it is nurtured properly, the Internet has the potential to become a major outlet for democratic expression and participation. In this new kenyan age of communications, being able to send and receive information is at least as important as the ability to exchange goods and services in the marketplace. But while access is something that everyone wants, it’s not something that everyone may be able to control.

On Monday 19th April 2010, Information and Communication permanent secretary Bitange Ndemo warned Kenyans and ordered the police to investigate the source of hate messages being spread through mobile telephones and computers.Apparently the messages, focusing on contentious issues in the draft constitution, surfaced after Parliament passed the draft constitution without amendments.Citing a UK registered domain as one of the sources of the inciting information on the draft constitution and an analytical piece by a Mr Paulsen presented at a local university.Dr Ndemo said the hate speech being spread was aimed at causing animosity between Muslims and Christians on the contentious clauses of kadhi’s courts and abortion.“The police have been instructed to carry out thorough investigations and prosecute the authors of hate speech no matter which side of the constitution debate they are on,” added Dr Ndemo, who was accompanied by representatives of human rights and professional groups.Spreading hate messages aimed at inciting people is a punishable offence and contrary to the stipulations of the Kenya Communications Amendment Act, 2009.There are concerns that the church might exploit the debate on the draft constitution to incite people against one another.

On Tuesday 20th April 2010, the Committee of Experts on Constitution Review held a press conference warning that it would not allow politicians and other groupings to mislead Kenyans over the draft constitution in particular, they said that they were alarmed by emails circulating propaganda about the Kadhis’ courts. The emails in question warned Christians against voting in favour of the proposed constitution as it would lead to an Islamic hegemony in Kenya brought about by the courts.

But how does one distinguish between hate and free speech? Even harder, how does one determine the difference between opinion & fact let alone lies especially when interpreting constitutional intent? Even if passed, the constitution is a living document whose intent is subject to different legal interpretations.

Freedom of Speech

If one believe that progress of human civilization depends on individual expression of new ideas, especially unpopular ideas, then the principle of freedom of speech is the most important value society can uphold. The more experience someone has with the Internet the more strongly they generally believe in the importance of freedom of speech, usually because their personal experience has convinced them of the benefits of open expression.

The Internet not only provides universal access to free speech, but it also promotes the basic concept of freedom of speech. If you believe that there is an inherent value in truth, that human beings on average and over time recognize and value truth, and that truth is best decided in a free marketplace of ideas, then the ability of the Internet to promote freedom of speech is very important.

Internet censorship comes in many forms. As things stand today, the ruling class in some countries have begun to realize the importance and danger to them unregulated content has. In an effort to control their people some governments have sought to censor and filter this medium. In Iran for example the government has been increasingly oppressive with regards to the Internet. The government has delegated responsibility to the Internet Service Providers who filter sites which are critical of the government, sites with democratic content and political bloggers. Iran recently blocked access to Youtube. Bloggers and reporters around the world have been imprisoned over their content by oppressive governments.

It seems that the Internet has become the new battleground over freedom of speech and human rights. Luckily however,even though censorship around the world comes in many forms, from the threat of incarceration (like in Kenya) and violence (Iran), limiting physical availability(China), ISP regulation to notions of net neutrality, people around the world can still meet and share thoughts and ideas, rants and arguments. The power of the Internet is within it’s very nature to influence and mold us into something wiser.

What Dr. Ndemo , the CoE & other Kenyan Commissions fail to realize is that the Internet is a common area, a public space like any village square, except that it is the largest common area ever known to man. Anything that anybody wishes to say can be heard by anyone else with access to the Internet, and this world-wide community is as large and diverse as humanity itself. Therefore, from a practical point of view, there are no ‘Kenyan’ standards that can govern the type of speech permissible on the Internet. The principle of freedom of speech is also embedded in the Internet’s robust architecture. Now that the world, including Kenyans, have had a taste of what the Internet promises, We will never settle for anything less.And whereas I have not read the reportedly hate emails, the silence of Dr Ndemo and the CoE when Macharia Gaitho tells people ‘Kenya will be land locked if they vote No ‘ is very telling. The paper presentation by Paulsen also can hardly be treated as hate speech.

While we must be against hate speech in all its forms, let us not brand opinions that we don’t like as hate speech. Those supporting the constitution should stop trying to intimidate those who are against the constitution. Opinions and interpretations of the constitution can not be criminalized despite what the CoE , KHRC ,Dr Ndemo or Dr Mzalendo purport.

Joe Ndungu
Editor Muigwithania.

PS..The Executive arm of government should continue its role in the internet infrastructure business and keep off internet content-What is hate speech can only be determined in the court system(Judiciary) not by ICT boards,committees of ‘experts’,cohesion or human rights commissions. On Mps charged with Hate speech – We need to point out that this are allegations not facts(thats why they are in a court).2.Yes they did say communities should move when the constitution goes through3.They did not say they would use force but rather said that the draft constitution provisions that provided for redress of historical land issues would mean that communities in lands that are not historically theirs will have to move.(Chapter Five, Article 63 under ‘Community Land’.Clause 2)The whole notion of use of ‘force’ or violence is a figment of the prosecutors imagination and an overzealous police department that is trying to please certain political interests The MPs did not mention violence, force or any other illegal means.They were talking about using the new constitution to get communities out if it passed .We may not like the Mps or their agenda but trumped up charges should be a thing of the past