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Policing Pre-referendum Hate Speech in Kenya

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As Kenyans anticipate the August 2010 referendum that will see either the approval or rejection of the proposed new constitution, media reports indicate rising tension and anxiety in certain regions. It is alleged that Kenyans have begun to flee for safety from their homes in areas where they have been threatened either verbally or in print. These fears are founded on past experiences of the 2008 post-election crisis that saw threats followed by violence targeting those perceived to be outsiders on an ethnic or political basis.


One of the variables fuelling tension is the polarization of the debate on the proposed constitution with the deepening rift between the divergent groups popularly referred to as the ‘yes' and ‘no' camps. Beyond the key contentious issues that have radicalized the debate, it is worrying to see yet another democratic process hijacked by single minded agendas that may derail the best interests of Kenya's future development. As civic education initiatives lag behind, the campaigns for the ‘yes' and ‘no' camps are at full throttle.

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Provision for this referendum was entailed in the peace accord that restored calm to Kenya after the 2008 post-election crisis. With the definite ethnic dimension of the post-election violence, another vital creation of the peace process was the National Cohesion and Integration Act that established the National Cohesion and Integration Commission (NCIC). The work of the NCIC is integral in restoring nationalism and fostering citizenship by promoting peace and unity.


In recent days, the NCIC has been on the forefront with their efforts to deter hate speech. They have introduced a free short text message system, which Kenyans can use to report any hate speech or looming conflict. This information will be used to investigate the claims, act upon them and prevent conflict through early warning systems.

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On June 15, 2010, an Assistant Minister and two Members of Parliament were arrested and charged with inciting hatred after publicly issuing warnings of evictions and conflict if the proposed constitution was passed. Reactions to these arrests have ranged from claims that the ‘no' camp is being victimized to applauding the NCIC for penalizing hate speech.


Section 13 of the National Cohesion and Integration Act finds guilty any person who uses threatening, abusive or insulting words or behaviour, or displays any written material, which is threatening, abusive or insulting and that is intended or likely to stir up ethnic hatred. It further defines "ethnic hatred" as hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.

The undeniable power of hate speech in fuelling conflict and instigating violence begs the implementation of this law. Critics have argued that unless hate speech is more narrowly defined in the Kenyan context, it may lead to ambiguity and misinterpretation. Nevertheless, this is an important step in pragmatically rebuilding a culture of peace that has suffered from the effects of politicized ethnicity.


The hate speech prosecutions are also particularly significant for Kenya as a departure from a recent history of impunity. To date, the perpetrators of the 2008 post-election violence have not been prosecuted. Apart from the efforts of the International Criminal Court to pursue these prosecutions, the Government still balks at convening a Special Tribunal to move the justice processes forward on a national scale. For impunity weary Kenyans, the hate speech prosecutions may hopefully be a sign of things to come.


Whilst the implementation of this law has been controversial, the causal relationship between hate speech and conflict is inexorable. However, to safeguard human rights and democracy, the hate speech law should be enforced within a comprehensive framework supporting complementary interventions towards sustainable just peace and reconciliation.

 

Written by: Nyambura Githaiga, Researcher, African Conflict Prevention Programme, ISS Nairobi

 

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