In Our Brothers and Sisters From Kikuyuland Must Give Us A Break From Yet Another Kikuyu President,
omwenga.com/2013/02/27/our-brothers-and-sisters-from-kikuyuland-must-give-us-a-break-from-yet-another-kikuyu-presidency/I plead in the name of fairness, for our brothers and sisters from Kikuyuland to give us a break from yet another Kikuyu presidency for the reasons I state in the blog.
As I do so, I must make it abundantly clear this is not a bashing of the community neither is the plea driven by any animosity or dislike of the community; the Kikuyu are just as fine a community and people like any other in the country all I am saying it's not fair in a country of more than 40 tribes to be dominated by one tribe and for such a long time as if the rest of the communities don't matter.
Yes, the Kalenjin community has also dominated the presidency in the one president we have had from there but the Kikuyu community has now had the presidency twice and yet seek a third one in Uhuru, who it also doesn't make sense and neither is it fair that he is the son of our first president trying to elbow his way into State House.
Let other communities also have a crack at leading the nation and more specifically the Luo whose son Jaramogi turned down an offer to be our first president in favor of his friend Mzee Jomo Kenyatta who would later come to clearly define the meaning of the expression asante ya punda ni mateke.
Jaramogi's son now seeks the presidency--this after toshaing Kibaki and making him president back in 2002 our brothers and sisters from that community really should return the favor and tosha Raila, which will also serve the dual purpose of giving us a break from yet another Kikuyu presidency any reasonable and fair Kikuyu would have to agree its the fair and right thing to do at this point and time of our history.
It's my wish that this shall be so, so is it the wish of a majority of Kenyans.
Omwenga ,
This is an example of hate speech and typical of what triggered the P.E.V. where ODM campaigned and incited Kenyans on the platform of 41 Vs 1. .
You might need to familiarize yourself with the National Cohesion and Integration Act, 2008 -No one is immune not even your proximity with the Prime Minister-Some of your articles in your blog uchambuzi tanaka have elements and sentiments which can be categorized as hate speech.
The National Cohesion and Integration Act, 2008
When defining hate speech, there are two sections of the NCI Act that are relevant; Section 13 and Section 62. These two sections form the basis for prosecuting hate speech in Kenya.
Section 13
Section 13 (1) of the National Cohesion and Integration Act 2008 states that 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 behaviour 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.
(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 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.”
Section 62
Section 62 (1) of the NCI Act provides that;
“ (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.”
Section 62 (2) of the NCI Act provides:
(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.
The Media Act, 2007
According to the Media Act No. 3 of 2007, Second Schedule to the Act, titled “Code of Conduct for the Practice of Journalism in Kenya”, Regulation 25 provides that;
“quoting persons making derogatory remarks based on ethnicity, race, creed, colour and sex shall be avoided. Racist or negative ethnic terms should be avoided. Careful account should be taken of the possible effect upon the ethnic or racial group concerned, and on the population as a whole, and of the changes in public attitudes as to what is and what is not acceptable when using such terms”.
Constituting the Hate Elements for Purposes of Prosecution
Although the provisions in the Penal Code have been in the Kenyan laws for longer and hate speech as a specific offence affecting the right to individuals and groups to full realization of their human rights, has been an issue since the Kenya National Commission for Human Rights produced its Report in 2005 on political incitements in the build up to the 2005 Constitutional referendum. Specific prosecution of hate speech recognized as a crime that can lead to serious international crimes such as genocide, has only been found in the Kenyan laws with the coming into force of the NCI Act.
In analyzing the constituting elements of the crime as defined under Section 13of the NCI Act, we find that emphasis must be had to:
Wrong Doer: Actor:‘Any person’ may be an individual human being or a juristic person can be guilty of hate speech.
OffendingAct: Utterances. There has to be an utterance or spoken word. The words may also be written in a book, a newspaper, a pamphlet, a brochure, or expressed in a public performance. The spoken word must be capable of being understood by the audience as stirring hatred directed at a particular section of the population. Publication entails the actual printing of the material containing hate speech as well as physical handing out of the material to the public or sections of the population.
Character of the utterances: the words, publication or form of expression has to be or involve threatening, abusive or insulting words or behavior.
Intent or likelihood: Not all abuses and insults are hate speech. Words only become hate speech if the intention of the maker of the statement is to stir up hatred. The intention of the person can be construed from the context, circumstances, environment and audience. When the maker of the statement did not have the intention to stir up ethnic hatred, but having regard of the circumstances, it is likely that ethnic hatred is stirred up, then the person in question still committed a crime under section 13.
Envisioned or likely effect: it concerns hatred against a group of persons on the basis of colour, race, nationality (including citizenship), ethnicity or national origin. Section 13 refers to “stirring up” and thus does not require that ethnic hatred took place. The target is a group of people, not an individual. Stirring up hatred against also implies that utterances should be made public to a certain minimum level or shared with a minimum of audience.
Under Section 62 (1)of the NCI Act the important elements are:
Intention: Section 62 clearly indicates that the person has to have the intention. Likelihood of effect is, unlike in section 13, not included. The intention of the person can be construed from the context, circumstances, environment and audience.
Envisioned effect: incite feelings of contempt, hatred, hostility, violence or discrimination against a person or a group. The target can thus be both an individual and a group. The basis for these feelings should be grounded in ethnicity (as defined in the NCI Act) or race.
The constituting elements of the crime defined under Section 62 (2) are:
Actor: a newspaper, radio station or media enterprise. It does not concern any person.
Admissibility Rule; Relevance And Credibility Of Evidence When Prosecuting Hate Speech
Pertinent aspects of concern must be borne in mind when preparing a case for successful prosecution of hate speech. These in summary include: -
1. Oral or direct evidence- Section 62 of the Evidence Act
2. Documentary evidence- Section 64,65,66,67,68 and 69 of the Evidence Act
Section 106A of the Evidence Act provides that “the contents of electronic records may be proved in accordance with the provisions of section 106B”.
3. Confessions- Section 25 A (2)
4. Plea-bargaining -Section 138 A Of the criminal procedure code.
THE INTERNATIONAL JURISPRUDENCE
As is the case in most ‘new crimes’, there are not too many local cases that have been tried under Kenya law. However, hate speech is not unique to Kenya and the international community has had to make provisions for addressing it in different contexts and a few examples are considered;
THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)
The following observation was made by the international Criminal Tribunal for Rwanda (ICTR) in the case of Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, case no. ICTR-99–52-T (the 'Media Trial');
Speech constituting ethnic hatred resulted from the stereotyping of ethnic groups combined with denigration. The court examined the tone of a broadcast that stated about the Tutsi that “they are the ones who have all the money”, observing it was a generalization that has been extended to the Tutsi population as a whole. It further observed that the tone of the broadcast conveyed the hostility and resentment of the journalist, noting that while this broadcast, did not call on listeners to take action of any kind, it demonstrated the progression from ethnic consciousness to harmful ethnic stereotyping.
• For communication to amount to hate speech, the tone with which the statement was conveyed is important. Does it convey hostility or resentment against any particular group? Does it reinforce existing negative stereotypes?
In the case of Prosecutor v Akayesu the court observed that
“In light of the culture of Rwanda, acts of incitement can be viewed as direct or not, by focusing mainly on the issue of whether the persons for whom the message was intended immediately grasped the implication thereof”. (ICTR 1998a: para. 558).
The ICTR also further observed that culture, including the nuances of the Kinyarwanda language, were important in determining what constitutes direct and public incitement to commit genocide.
• The meaning of the words used in the specific context is a principle consideration. It does not matter that the message may appear ambiguous to another audience or in another context. What matters is whether the audience understands it to convey hatred or resentment which could stir violence against a certain group of people.
TURKEY
Ibrahim Incal v Turkey case No 41/1997/825/1031
In this case the applicant, a council member of a political party was convicted under the Turkish Penal Code for involvement in the intended distribution of pamphlets. The pamphlets claimed that the restrictions imposed on street vendors were a part of a larger plan to drive Kurds back to their region, and called on “patriots and democrats” to organize themselves and resist the plans. An injunction was obtained ordering the seizure of all copies of the leaflet, on the basis that they contained separatist propaganda capable of inciting people to resist the Government and commit crimes.
Criminal proceedings were also instituted against the applicant and other members of his committee. The applicant was found guilty of attempting to incite hatred, hostility through racist words and was sentenced to six months and twenty days' imprisonment. As a result of his conviction, he was barred from the civil service and forbidden from taking part in a number of activities within political organizations, associations or trade unions.
The court was unanimous in its decision that there was an interference by a public authority with the applicant's right to freedom of expression, noting that there was no incitement to violence, hostility or hatred between citizens. It further noted that even taking the background of terrorism into account, there was nothing that could warrant the conclusion that the applicant was responsible for the problems of terrorism in Turkey and hence the applicant's conviction was found to be disproportionate to the aim pursued and therefore unnecessary.
• There is a thin line between freedom of expression and hate speech. Care must be taken to ensure that the charges facing hate speech suspects actually meet the threshold of hate speech, to avoid compromising the exercise of freedom of expression.
Zana Versus Turkey ECHR-18954/91
While serving several sentences in Diyarbakir military prison, the applicant said in an interview with journalists that he supported the PKK national liberation movement, but on the other hand that he was not in favour of massacres by the PKK, adding that “killing women and children was just a mistake”. Court observed that the statement was made and reported in the newspaper at a time when serious disturbances were raging in southeast Turkey. This had an impact such as to justify the national authorities' taking a measure designed to maintain national security and public safety.
Although the applicant's statement contained both a contradiction and an ambiguity, it could not, however, be looked at in isolation and had had a special significance in the circumstances of the case. The interview had coincided with murderous attacks carried out by the PKK on civilians in southeast Turkey. The European Court of Human Rights (ECHR) found that the support given to the PKK by the accused, who was the former mayor, had to be regarded as likely to exacerbate an already explosive situation in that region. The court found that his words would lead to public incitement to hatred and hostility and therefore, there had been no violation of his freedom of expression.
• The speech in question must be considered in the context of what is happening at a given time, such as existing tensions.
• To meet the threshold of hate speech, there should be a pressing social need, which must be supported by relevant and sufficient evidence.
• The interference with freedom of speech must be proportionate to the legitimate aims pursued.
SOUTH AFRICA
R.V Nkatlo1950 (1) SA 26 (c) p30-31
In this casethe appellant had been convicted for charges related to comments he made at an African National Congress (ANC) meeting and which were considered to be promoting racial hostility. The words attributed to him were that “the only hope we have to change affairs is by a revolution and a revolution means bloodshed”
The court observed that;
“in applying the test that a person is to be presumed to intend the natural and probable consequences of his acts, the courts must be astute to see that the inference of intention to promote feelings of hostility is the only inference which can be reasonably drawn. If the language used is reasonably capable of another explanation, the inference of intent cannot be drawn”
• The absence of actual intent to promote feelings of hostility constitutes a complete defence, even where objectively viewed; the words in question would have had the proscribed effect.
INDIA
S. Rangarajan v P.J. Ram (1989)(2)(SRC) 204p.266
This case involved an application for approval of a film by the relevant authorities in India. The nature of the film was such that it touched on the sensitivities of the Indian caste system. Some members of the film board felt that the impact of the film would create law and order problems. Others felt the film would hurt the feelings and sentiments of certain sections of the public and that reaction to the film in certain parts of India was bound to be volatile.
The Supreme Court of India observed in the case of S. Rangarajan v P.J. Ram (1989)(2)(SRC) 204p.266 stated;
Our commitment to freedom of expression demands than it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should have proximate and direct nexus with the expression. The expression should be inseparably locked up with the action contemplated, like the equivalent of a ‘spark in a powder keg.’
• There has to be a very close link between an expression and threat of disturbance or violence. A remote connection between the alleged hate speech and danger to a particular community will not do.
Concluding Remarks
There are certain important considerations that one need check off when determining that hate speech has been uttered. These include;
1) The Context: The context in which the statement is made is important, for example, a statement provoking resentment against members of an ethnic group would have a heightened impact in a politically charged, and ethnically polarized environment.
2) Ripple effect: The statement should be such that it can cause a ripple or discomfiture among members of a targeted group.
3) Fear: The statement should be capable of spreading feelings of fear or loathing across an entire community.
4) Possible retaliation: It should be statement that can create tides of retaliation and counter retaliation.
5) Violence: it must be speech that advocates or encourages violent acts or crimes of hate.
6) Hostility: It must be a statement that creates a climate of hate or prejudice, which may lead to the commission of other crimes
7) Impact: hate speech carries far more weight than other criminal acts
www.cohesion.or.ke/index.php/media-centre/news/144-unpacking-hate-speech-by-commissioner-milly-odongo
