A certain journalist said to me, ‘East African Breweries has a lot of brands but the one that defines them is Tusker.’ ‘Hate speech,’ he said, is NCIC’s Tusker.
The National Cohesion and Integration Commission was created under an Act of Parliament after Kenya’s 2007 and 2008 post election crisis and the subsequent political negotiations led by Dr. Kofi Annan. Among its key mandates is dealing with and mediating ethnic, religious and race related conflicts and promoting peaceful and harmonious co-existence among Kenyans. Hate speech constitutes 15 percent, if not less of the NCIC mandate. Yet it has remained the yardstick by which NCIC is judged by, the proof for the average mwananchi that NCIC is ‘doing a good job’.
This yardstick was set mainly by the events of the post election crisis that made Kenyans realise how fragile peace is. From both the ODM and PNU campaigns in 2007, Kenyans have seen the significance of how directly hate words can translate into violent actions. They are therefore more alert to hate speech than ever before and long before law enforcement officers move towards investigation, they will usually raise the alarm to the NCIC.
There are only 6 months to go to a March 2013 election and hate speech, as is usual, peaks in election years. Most Kenyan politicians have proved to have few ideas on campaigning on platforms other than the usual ethnic ideology of the ‘we’ versus ‘them’ campaign method. Unfortunately, the law cannot tame these ethnic ideologies that are supplanted so deeply within Kenyans.
The upright leaders can tame it though. However those leaders who seek to do so seem not to either find an audience to speak to that will be attracted to their ‘boring’ politics or do not have the courage to fall on their own sword and commit political suicide by campaigning on say ‘a development’ agenda as opposed to ethnic balkanization.
The act of hate speech is defined in the NCI Act as being carried out by
13. (1) A person who-
(a) Uses threatening, abusive or insulting words or behaviour, or displays any written material;
(b) Publishes or distributes written material;
(c) Presents or directs the public performance of a play;
(d) Distributes, shows or plays, a recording of visual images; or
(e) Provides, produces or directs a programme;
Which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior; commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.
The Act further says that:
(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.
(3) In this section, ‘ethnic hatred’ means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.
And farther, that under offences of racial and ethnic contempt in 62(1): Any person who utters words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity or race, commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or both.
(2) A newspaper, radio station or media enterprise that publishes the utterances referred to in subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding one million shillings.
NCIC receives an average of twenty complaints per week, and recommends a few extreme cases for prosecution. The Act also provided for arbitration, conciliation and methods as well as softer options to prosecution such as cessation notices. These notices have been sent to several people in lieu of prosecution and many other cases have been conciliated and mediated.
A lot of groundwork has been put in place on hate speech but, as yet, without a high level conviction of a prominent Kenyan (low level hate speech actors were convicted in the referendum period). Kenyans feel that the ‘NCIC Tusker’ is not only failing in defining the rest of the brands, but is in itself not selling.
The first experience of trying out the efficacy of the NCIC hate speech laws on prosecution was in the lead-up to the 2010 national Referendum on Kenya’s Proposed Constitution. NCIC had recommended a number of cases for prosecution in court with the most visible featuring three members of parliament. The decision to forward the cases for prosecution as opposed to dealing with them through, for example, cessation notices was informed by the macabre similarity in what the politicians were saying with what was contained in hate leaflets circulating in the areas under question, advising certain communities to leave.
NCIC had no idea that its task as envisaged in the Act, would not end at recommending for prosecution. The risk factor of the ‘Tusker’ is that however well NCIC does the brewing, the actual bottling and sale is dependent on other arms of Government most specifically the Police, Director of Public Prosecutions and the Judiciary. The brand can only be successful if the conveyor belt runs efficiently.
There are a lot of factors that have so far worked against more successful hate speech convictions for those cases recommended for prosecution. One definitely is the lack of judicial precedence, the other; the perception by the police that hate speech is a misdemeanour not worth wasting time over. Part of the problem starts with the Police training that is itself replete with insults. A policeman told us that when a person complains to him that someone called him say Mkamba or Mkikuyu mjinga, he wonders what the problem with that is as he himself was routinely abused as he trained in Kiganjo, based on his ethnicity. The failure to see the harmful effects of hate speech at such a level surmounts to a general feeling that investigating and prosecuting hate speech is a waste of law enforcers’ time, which they would otherwise be using to deal with ‘serious crimes’ such as robberies and murders that they were trained to deal with. NCIC also receives a huge amount of complaints that should ideally be dealt with as an offence under the Penal Code or Hate Speech as defined by the Media Act.
NCIC has brought all the actors together under a tripartite committee that has seen the Police, the DPP’s office and NCIC work out strategies on examining cases together before they are recommended for prosecution. The members of parliament in the case above were acquitted, with one of the issues in question being the strength of the witnesses. However, the action taken to prosecute them on hate speech charges had results. For the first time since the advent of the cell phone and emails in Kenya, Kenyans voted in an atmosphere devoid of hate messages in their inboxes. The suspicion and ethnic animosity still existed, but there was a consciousness that it was illegal to send those kinds of messages. In comparison with the 2005 referendum on the passing of the Constitution, the hate messages and speeches dipped by 95 per cent.
NCIC has since hired more investigative staff including policemen. It has also, separately built the capacities of police, prosecutors, judges and journalists on the law. The Police have not only received training but recorders as well. Police recordings will be easily admissible as evidence in court and therefore in future, there will be no problems on verifying the motive of the witness to testifying against hate speech. NCIC has also entered into partnerships with the Media Council of Kenya and the Communications Commission of Kenya in a bid to tame the media sites where hate speech has been known to flourish. Investigations, which should lead to closing some of these sites, continue to date.
In the lead up to the 2010 referendum, in addition to working on hate speech, the National Steering Committee on Peace building and Conflict Management (NSC); National Cohesion and Integration Commission (NCIC); PeaceNet Kenya; and, United Nations Development Programme (UNDP) came together to establish a Platform for Peace, dubbed UWIANO which is the Swahili word that connotes ‘cohesion’. However, these four Partners were not only concerned with contributing towards delivery for a Peaceful National Referendum Process, but were keen to see to it that peace building and conflict management initiatives are scaled up towards the 2012 general elections and beyond. UWIANO’s key strength is the link it provides between early warning and early response or intervention to conflict situations. UWIANO receives and processes information and offers opportunities through the four organizations to resolve potential crises before they materialize. These rapid response initiatives have impacted on quick interventions on hate speech.
NCIC has learnt quite a few lessons from dealing with hate speech. One is that the key defining factor of whether a statement qualifies as hate speech or not is the thin line that exists between freedom of expression as guaranteed in the Constitution and hate speech as an offence. This means that there is only so much that can be done without people feeling offended that NCIC is looking over their shoulders to stop them from speaking their minds. The other is that prosecuting a hate speech case in court is a lot of work, from court attendance to ensuring witness participation and conducting thorough investigation. Moreover, frequently, there are people who are recipients of hate speech that are afraid to fight back. This includes for example, NCIC’s recent efforts at getting witness statements from the South Asian community in Kisumu over an incident at the Nyanza Club where they were threatened with expulsion. NCIC also has seen complainants from Universities alleging bias, including awarding of marks on the basis of ethnicity, afraid to have their names revealed.
Hate speech has its historical bastions, grounded in ethnic and racial ideology that is difficult to fight back. Statements such as ‘Luhyias can only be cooks and watchmen’ frequently attributed to Joseph Kamotho, KANU’s former Minister, were obviously made with this in mind. This statement was a seed that was planted in fertile ground that was receptive. The challenge of dealing with ethnic and racial stereotypes so that they do not become acts of discrimination, continues to bedevil NCIC. The impact of the statement attributed to Kamotho was brought home to the NCIC while recording its TV show, Road to Cohesion, in Kakamega. The TV audience, consisting mainly of Luhyias, was at pains to explain that other communities also produce cooks and watchmen. It was a painful process to see the evidence of Jean Paul Sartre’s statement that communities ‘allow themselves to be poisoned by the stereotype that others have of them, and they live in fear that their acts will correspond to this stereotype’. Kamotho owes the Luhyia an apology.
Another lesson is that there is common resistance to difference that leads people to define others by what they do not know of them, rather than what they do. Hate speech is clearly an offshoot of intolerance to difference.
The other lesson is that people accused of hate speech on the grounds of ethnic incitement frequently become their communities’ heroes. It became very difficult for NCIC to function in the areas that the Members of Parliament were charged with during the referendum because as we were frequently told, ‘they said what was in our hearts’. The same sentiments have been seen to arise with the charging of three Kikuyu musicians in Court. NCIC recommendation of charges against hate speech frequently follows a familiar script. After the publicisation of the case some members of the ethnic community from which the accused comes from will complain, claiming victimization. At such times, it is common to hear NCIC labeled the ‘hate commission’. In other words, NCIC is damned if it does and damned if it does not.
Besides the curbing of hate speech, the Commission remains acutely aware of its wider mandate to address differences in access to opportunity that has economically segregated whole swathes of parts of Kenya. NCIC has recently published Africa’s first ethnic and race relations policy, coming hot on the heels of its audit of the ethnic diversity in the public service and the universities. These audits presented the clearest picture so far of the exclusion of marginalized groups. The universities led by the Minister of Higher Education, Professor Kamar, have since adopted and strengthened NCIC’s recommendation and are taking visible steps to bring on board minorities as well as ameliorate past wrongs.
NCIC has also led a number of communities in conflict such as the Kikuyu and Kalenjin, Gabra and Borana, Kisii and Kalenjin and Tharaka and Tigania in community mediations that channel their differences through social contracts that define dialogue as the most important component of conflict transformation. The mediation projects have given an opportunity to engage the machete wielding youth who characterized Kenya’s 2007/2008-post election violence, knowing fully well that many of them constitute the low level perpetrators who were not arrested. All the social contracts define hate speech in detail within the context of the communities in conflict, highlighting what the communities feel are statements based on ethnicity and calculated to incite.
Important national conversations were generated around the social contracting, the ethnic and race relations’ policy and the audits. Besides successfully advocating for the end of the quota system in education; NCIC has also ensured that children can go to school in any part of the country and that the inclusion of citizenship education in the curriculum includes the definitions of hate speech. All the above initiatives have long-term implications for entrenching Kenyanness permanently in constructive ways. Unfortunately, the effects are so long term as not to be felt immediately. For a Kenyan populace that wants to see heads roll on a hate speech agenda, it is not good enough to satisfy what Martin Luther King would call ‘the urgency of now’ which in Kenya means a hate speech conviction.
It is instructive to note that even as questions arise on what is needed to hold Kenyans together and that even in applauding NCIC initiatives, Kenyans still want to negotiate a common understanding on what to do rein in hate speech. When NCIC launched the National Essay Writing Competition on the theme of Ethnicity, Race and Nationhood for youth between 11 and 25 years in educational institutions, the youth prevalently mentioned hate speech even in essay questions that had not specifically made direct reference to the need to respond on hate speech. Young people clearly think that addressing hate speech is a priority for Kenya.
In taking the cohesion and integration conversation to schools, NCIC trained drama teachers, sending them on a trip to the genocide museums of Rwanda, and sponsored the 2012 schools and colleges drama festival, billed as East and Central Africa’s biggest annual arts event. The winning plays featured students prepared to win elections at all costs, using all the tricks that politicians use, including hate laden songs. Another featured students who went through a criminal justice system in which hate speech cases never seemed to end, the matter was either adjourned, the judge absent, the witness unavailable or the file lost! We got the message; clearly the need for the NCIC ‘Tusker’ to sell is still great.
The Kenya Kwanza campaign, a multi media campaign with a host of goodwill ambassadors with big names such as media show host Julie Gichuru and mediator Lazarus Sumbeiywo in which Kenyans pledge not to resort to violence has helped in the sense that it acts as conflict prevention insurance.
Towards and after the election, public information and education to demystify conflict prevention strategies that include naming and shaming hate speech mongers is the next course of action. The NCIC has more cases lined up at the DPP and the Police waiting for action as well as more lined up for mediation and conciliation. The bigger and greater challenge on hate speech will be to move away from the threat of legislation to the promise of knowledge and understanding. The cultivation of a Kenyan identity, or the promise of a Kenya with space for everyone that could provide the answer to cutting across differences, hostilities, divergent perceptions and contestations commonly inherent in relationships; remain beyond reach for now until the country harnesses energies linked to tolerance, national cohesion and integration. And for the ‘Hate speech as NCIC’S Tusker’ debate, cohesion is an evolution, not a revolution.