By Javas Bigambo
Kenya’s political space is currently heating up with discussions on what has been framed as ‘dynasty – hustlers’ debate, being driven by political elites from opposing sides.
Potentially, this increasingly confrontational rhetoric may easily lead to either pre or post-election violence if not nipped in the bud early enough. If the memory of the 2007/2008 post-election vicious conflicts serves as a vital lesson, Kenya’s citizenry should be troubled by the divisive hustler-dynasty narrative’s scale-up.
Politically instigated violence is a threat to cohesion among communities that constitute the Kenyan nation. Therefore, it follows that cohesive nationhood survives on, among other things, the nutrients of responsible free speech. This informs and sustains nascent democracies whose fragility is only secured by a high regard for the rule of law.
Freedom of speech
The genealogy of mankind’s right to free expression can be traced back to heralds of modern civilisation. This era brought the entrenchment and propagation of salient principles and rights for humanity’s mutual coexistence.
Those rights are inherently human, predicated on shared values whose protection fosters mutual coexistence.
Among these rights is the freedom of speech. Undoubtedly, freedom of speech and expression is at the core of fundamental rights and freedoms for any democratic society such as Kenya.
As it is with other rights and freedoms, freedom of expression is protected by local judicial mechanisms and emphasised by hawk-eyed protection of independent states’ international assembly – the United Nations.
Over time, this right’s significance has been accentuated by being embedded in Constitutions, such as Kenya’s. Freedom of expression is enshrined in Article 33 of Kenya’s Constitution 2010, and includes the right to seek, receive, or impart information and ideas.
Curtailing of free speech?
Yet, regardless of how sacrosanct it is, this right has been subjected to various forms of censorship, restrictions on access, and violent acts directed against those whose views or inquiries are seen as somehow dangerous or iniquitous.
The strictures of statutory law in the interests of war on terror and national security, compounded by the lack of a clear definition of hate speech, have given much latitude for limiting freedom of expression. Further, Kenya’s penal code criminalises incitement and frowns upon it as an enabler of violence and contrary to the law’s aspiration.
The Computer Misuse and Cybercrimes Act, 2018, passed in May 2018, further threateningly restricts online freedom of expression by imposing penalties of up to 10 years imprisonment for the publication of “false” or “fictitious” information that results in “panic” or is “likely to discredit the reputation of a person.
So, freedom of speech and expression protection and guidelines are properly domiciled in Kenya’s corpus juris.
From its founding, Kenya’s democratic trajectory has continually been shaped by explorations of the freedom of speech and expression, and the various liberal uses of the same mostly enabled by ethnocentric paradigms.
Incitement versus freedom of speech
Kenya’s political sphere is dominated by ethnocentric gatekeeping, where ethnic groups are merely seen as voting blocks for political harvesting by leading politicians.
Kenya’s most ethnically demarcated regions are seen as political protectorates, jealously guarded by the regions’ political kingpins, who lose their minds whenever other prominent political leaders are seen to be making inroads.
It is for protecting political turfs or fighting for political survival and interests that politicians and their support bases find themselves on the incitement trajectory.
There seems to be a very thin line between freedom of expression and incitement. However, those who support incitement are responsible for this situation.
Ordinarily, incitement is translated as the intentional and reckless remarks aimed at stirring up and whipping people’s emotions along a sensational subject matter such as property ownership, ethnic regrouping, political identity or any matter through which one antagonises a group against another.
Inciting remarks are dishonest, untruthful, and irresponsible. They are founded on ethnocentric biases or ulterior political motives as Kenya’s political history reveals.
A cycle of entertaining incitersh out
Every electioneering period in Kenya is always filled with publicised remarks from politicians, which are sometimes construed as incendiary.
The fodder for political incitement in Kenya is the fertile ground mostly of naïve minds that include individuals from informal settlements and rural folks who wallow in the miasma of high illiteracy levels. The ignorance and misinformation of targeted groups for incitement secure the catchment demography for ambitious Kenyan politicians who will not stop at anything for self-actualisation.
Since the onset of the new constitutional dispensation in 2010, no high profile conviction has been secured over charges of incitement. One would be forgiven to think that facilitative statutes that outlaw incitement are peripheral suggestions that have no binding effect on politicians, if their characters can inform important conclusions.
In criminal law, incitement is considered an emerging crime because the criminal objective is mostly not consummated, save for situations where the incitement’s objective is actualised, resulting in abhorrent disruption of peace and violence.
As the date for Kenya’s 2022 elections draws nearer, this is the time to act. The national intelligence community has its work cut out for data gathering and transmitting the same to organs such as the Directorate of Criminal Investigation, the National Cohesion Integration Commission, and the National Police Service and the Director of the Director Public Prosecutions for processing and action.
Mr. Bigambo, a political scientist and lawyer, is Managing Consultant at Interthoughts Consulting.