Why Cord is laughing off hate charges

 

Milimani Law Courts, Nairobi. The essence of hate speech is threat, abuse, or insult. But sometimes the language used is coded. PHOTO/FILE 

In Summary

• Words only become hate speech if the person “intends” to stir up ethnic hatred, or if ethnic hatred is “likely” to be stirred up.
• The type of evidence collected is also critical. For example, secondary evidence such as tapes and videos may not be admissible in court.

By Peter Mwaura
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A mkokoteni hustler hauling bags of potatoes shouts at a group that was chatting while blocking his way: “Tokeni njiani nyinyi mafala wa Kisumu, au mrudi kwenu.”

This is one of the examples given in the Police Training Manual on the Enforcement of the Law on Hate Speech.

 

To add another, here is a statement made by an MP during the 2005 referendum: “Watu wa Central Province wameshindwa kama shetani”.

The two examples illustrate the challenges faced by police in determining what hate speech is, and what is prosecutable. Hate speech is a tough crime to prosecute and make stick.

The National Cohesion and Integration Commission has not successfully prosecuted any of the many high-profile cases it has initiated with much fanfare.

READ: Arrest MP for hate speech, says Tobiko

READ: MPs, Senators summoned over hate speech

READ: Moses Kuria charged with hate speech

It’s no wonder Cord leaders are pooh-poohing the summons they received from the Director of Public Prosecutions to record statements with the police in connection with the hate speeches they are supposed to have made in rallies across the country.

On Tuesday, Senator Moses Wetang’ula dismissed the questions the police were asking those summoned as “ridiculous and at best laughable.”

He could well be right. The police face many challenges including hostility when collecting evidence from those accused. Other challenges are difficulty in interpreting what constitutes hate speech, preserving evidence and conducting prosecutions in a manner that can lead to conviction.

NOT ADMISSIBLE IN COURT

Section 13 of the National Cohesion and Integration Act states that a person who “uses threatening, abusive or insulting words or behaviour” is guilty of hate speech. The section is open to many and very wide interpretations. But not all abuses and insults are hate speech.

Words only become hate speech if the person “intends” to stir up ethnic hatred, or if ethnic hatred is “likely” to be stirred up.

The essence of hate speech is threat, abuse, or insult. But sometimes the language used is coded. The words used could have an alternative meaning, a figurative one, or could be an innuendo. The context in which the words are used is also important.

So is the status of the speaker and the forum where the words are spoken, as well as the publicity given to the speech.

The type of evidence collected is also critical. For example, secondary evidence such as tapes and videos may not be admissible in court. Other challenges include interference by influential politicians.

A hate speech charge may also be challenged on the grounds that the words were not intended to incite violence or cause hatred, or that it violates the freedom of speech guaranteed in the Constitution.

Drawing up the charge itself could be quite tricky. If a charge contains more than one offence in one count, or if it does not disclose an offence known to the law, the court could reject the charge.

A rejected charge could act as a bar to further prosecution.

The Cord leaders could very well go on laughing all the way to the next rally, unscathed.

gigirimwaura@yahoo.com