In early January 2015, Alan Wadi Okego, a 25 year old Moi University student, was arrested for posts he had made on social media against the Kikuyu ethnic community, and was charged, among other things, for ‘insulting’ President Uhuru Kenyatta over the passage of the controversial security laws. Hardly a week after his arrest, activist and blogger Kiplangat Abraham Mutai was also arrested, for his tweets alleging high level corruption that had caused ‘anxiety’ in official circles. Mutai had his mobile phone confiscated and his social media accounts shut down, setting out a twitter storm among Kenyans on Twitter, calling for his release. However, the Wadi and Mutai incidents are not isolated. Blogger Robert Alai, a ‘controversial’ social media activist to some, and a whistle-blowing crusader to others, has had his own share of arrests and social media account closures, but has persisted on.
In 2013, the Ministry of Education’s National Drama Committee banned a play by Butere High School called ‘Shackles of Doom’ from participating at the National Drama Festival on the grounds that the play was likely to incite hatred and endanger national security. The play featured a story of a community that benefited from a fictional country’s natural resources at the expense of other communities. The ban would eventually be lifted by the High Court following a petition by human rights activists.
More recently, the Kenya Film Commission has embarked on a rigorous censorship campaign, banning films such as the Oscar winning ‘The Wolf of Wall Street’, the Kenyan film ‘Stories of our Lives’ based on true accounts from Kenya’s LGBT community, a film that had premiered to world acclaim at the Toronto International Film Festival and ‘Fifty Shades of Grey’ based on a novel of the same name that has been widely sold in the country for the last three years.
The mainstream print and broadcast media have not been spared either. In January, the Media Council of Kenya, through a press release, said it was ‘contemplating the withdrawal of accreditation’ of journalists from The Star newspaper and ‘excommunicating the paper from media enterprises regulated by the Media Council’. The Star newspaper had received no direct communication from the Media Council of the threatened action or the offence that has warranted the Media Council’s threat before this press release. One was left to speculate what articles or stories published by The Star had caused such grievous offence to the Media Council that they would issue a press release without any attempt to notify the newspaper beforehand.
Are all these incidents isolated? Have they been happening independent of each other or is there a gradual and systematic closure of the space for the freedom of expression and freedom of the press in Kenya? What is this freedom of expression to begin with? Is it an absolute right? When and how can it be controlled? Should it be controlled at all? Is there such a thing as controlling the freedom of expression for public protection if any gag of it will cease to be for the protection of the public, but will instead be for shielding the government or the elite from criticism?
To understand the context and passion with which activists in Kenya have defended the freedom of expression and the push back against the encroaching closure of its space since by the incidents such as the ones mentioned above, one perhaps needs to appreciate what this freedom is and why any forward thinking nation cannot progress without it.
Since the beginning of the hunter-gatherer society, the control of speech and expression has been a tool used to demonstrate hierarchy and power decreeing who is allowed to speak and who isn’t, whose voice can be heard and whose can’t, who can say what, and to whom, and with whose permission. Children should be seen and not heard. Women cannot speak at a gathering. The young do not challenge the decisions of the old. Slaves do not speak unless spoken to. The colonised do not have a voice. To challenge is to blaspheme and blasphemy means death. Permission to speak sir? Your Honour, may we approach the bench?
The freedom of opinion and expression, and its antecedent freedom of the press and the arts, is one of the cornerstones of any real democratic society. Yet, as history attests, this is a freedom that has been, and continues to be compromised across the world, including in the global West. It is inevitably linked to many other rights, including the freedom of assembly and association, the right to privacy and freedom from State interference in correspondence and personal property. Its origins, ironically, lies in the parliamentary immunity that Members of Parliament today enjoy, one that allows them absolute free speech without legal repercussions within the confines of Parliament. Uncanny then to imagine that it is they who pass legislation to compromise this very right for the citizens they represent.
It is almost impossible to control the right to hold an opinion and the right to free thought. Freedom of expression really begins to enter play when thoughts or opinions are spoken, written, drawn, published, acted or otherwise expressed (e.g. through dress), especially when expressed in public. It is even more compelling if the opinion is one in which the government or section of society find uncomfortable. If the hallmark of democracy is freedom of speech, it is the duty of a government to nurture this freedom, and protect it, even more so when the views being expressed are critical of its governance. Indeed, how else does one gauge the maturity of a democracy than by its ability to protect that which offends it? How different would a democracy be from a repressive dictatorship if it seeks to silence, censor and harm its critics and the voices of dissenting opinion?
The opponents to the freedom of expression have strongly argued, correctly, that rights and freedoms are not all unfettered, and that they carry with them a corresponding duty, largely in respect to the rights of others. For many rights, this statement is broadly true. However there are some non-derogable rights, rights that can never be restricted, such as the right to life (the death sentence argument notwithstanding), the freedom of conscience or the right to the protection of the law. However, even the rights that can, within legal limitations, be restricted, like freedom of expression, must never be so ridiculously curtailed or repressed. The exercise of these rights should never be subject to such Orwellian regulations that would render the rights non-existent in reality. In a democracy, the citizenry must never be fearful of voicing their opinions. Laws must never be enacted to penalise those whose views are different from those of the majority.
Legislation across the world have prescribed restrictions to speech and expression on grounds that have included blasphemy, pornography, indecency, incitement, religious or racial hatred, and recently, the threat to security. The logic behind these restrictions, such as ‘security threats’ may be arcane, but this, in itself, is not the challenge. The issue for most human rights lawyers and activists is the intentional ambiguity with which laws prohibiting speech and expression are usually drafted. Their provisions often leave room for much abuse and selective application. The sedition laws of Kenya in the 1980s are a prime example.
Historically, it has been the sensitivities of the political or religious elite that has dictated what acceptable opinion is. It is they who have used their powerful position in society to censor books, art, film and music that contradict their school of thought. In middle ages Europe, contrary opinion sent men and women to the stake for heresy, witchcraft and for professing faiths other than Roman Catholicism. In more recent times, those opposed to the ‘popular’ wars in Vietnam, Afghanistan or Iraq have been publically censored. Divergent views on the ‘war on terror’ pits one on the egregious ‘with-us-or-against-us’ scale often leaving little space for meaningful debate. In Kenya any honest conversation for justice around the 2007 post-election violence has become enmeshed with electric barbed wire that to hold an opinion other than the officially sanctioned one is to invite public hostility and State scrutiny. As an adage goes, to speak is a sin.
We seldom connect freedom of expression with the open blooming markets around us, or the fostering of knowledge and science. Yet capitalist market economies only thrive when the right of expression exists. Commercial advertisements, market analysis and open debate can only find avenue through free expression. Capitalism is the economic expression of the freedom of thought in the space of production. It allows men and women to think freely in the market, create material expressions of their ideas and bring those ideas to market without coercion. The existence of a free media provides a platform for those ideas to be advertised to the public, and for analysts to make commentaries on the state of the economy. Where expression starts to get repressed, the death of capitalism follows.
The Irish writer Oscar Wilde said art is merely an imitation of life. Yet art, that most aesthetic creation of the human imagination has caused more grief, conflict and authoritarian censorship than perhaps any other form of expression. Societies have been disturbed by words, images, nuances, suggestions, and even gestures. Many progressive democracies have, with time, matured to find space for all forms of art, as long as the art form does not threaten the life of a person or existence of a group of people. What were once ‘obscene’ publications such as D H Lawrence’s Lady Chatterley’s Lover or Vladimir Nabokov’s Lolita are now considered literature classics. Material whose content is assessed to be pornographic is appropriately labelled, and like cigarettes and alcohol, strictly restricted for the use of only interested adults. When the State appreciates that its citizenry is comprised of an intelligent, literate public capable of making its own informed decisions, then a rating system to guide them on choice is sufficient control, as opposed to outright censorship or bans, more so in an age where a lot of content can be streamed online and accessed on a smartphone. There is little difference between blanket censorship, bans and the burning of books. Recall Heinrich Heine, ‘where they burn books, they will ultimately burn people as well’.
In the aftermath of the Charlie Hebdo killings in Paris, a fierce but healthy debate ensued on the place of expression and offence, on the right to publish images that are considered offensive, not just to Muslims, but also to France’s other large immigrant minorities, versus the right to express the views that those images, an aggressive dissent from religion, were meant to depict. Whereas there might never be agreement on the subject matter of the Charlie Hebdo images, the one thing there is consensus on, is that murder, legislation or State control of expression of the kind that is meant to silence it completely is an exercise in futility. The Nigerian-American writer Teju-Cole aptly noted in his excellent New Yorker piece Unmournable Bodies, ‘it is possible to defend the right to obscene and racist speech without promoting or sponsoring the content of that speech. It is possible to approve of sacrilege without endorsing racism’.
Like the proverbial boy who was brave enough to point out that the Emperor’s parade of his new clothes was but a farce, (the emperor was in fact naked to the bone), there will always be voices in society that will speak truth to power, whose views might offend the public, who will say things that may cause ‘anxiety’, or even tell us that the Wizard of Oz we believe in is nothing more than a man behind the curtain turning levers. A democracy cannot exist if these voices cannot speak, if they are not protected, and if the platforms for their expressions are shut down or penalized, or if we, like the townsmen of medieval Europe burn them on a pile of wood, only to beatify them later.
What is the freedom of expression? It is celebrating the satire of a play and not fear the dry bones that may be mentioned in ‘Shackles of Doom’. It is Wadi and Mutai in a society where they can write and tweet their opinions without fear of incarceration; where the fourth estate is empowered to execute its duty to report truthfully and without fear, even about things that we might not want to hear; where adult citizens have the right to read books and see films of their choice; where ideas reach the marketplace and businesses have platforms to advertise; where dissenting voices are protected, and where society bustles on the vibrancy of criticism, science, arts and letters. Control a thought, repress speech, penalise the press, and like a house of cards the pillars of democracy will crumble.