Let's clearly define hate speech

There are two sides to the raging debate on what exactly constitutes ‘hate speech’ and what doesn’t but before we delve into this, let us start with an analogy you may have come across on the Internet.

It goes like this; two men are fishing, one on each side of a river. God, who has painted Himself white on the right and jet-black on the left side of His body, comes rowing downstream on a makeshift boat. The man on His right exclaims after God has passed by; “Gosh that man is very white!” The man on the other side interjects rather rudely, “How wrong you are, that man is so black, I had a better view from where I am!”

Then as the exchange probably cat-wheeled towards tribe and insults that spring from one’s mother, God again surfaced from the corner of the river, this time rowing upstream. As you can guess, he who saw the white side of him earlier was now exposed to the dazzling black side and vice versa. Both men ‘apologised’ to the other for having not seen right, and therefore being wrong. Problem however lay in the fact that both believed they were wrong and so again the situation grew comical.

That is the situation we are in today in Kenya; hate speech isn’t what the law says it is, but what we make of the source, who we believe they represent (mainly President Uhuru or Opposition leader Raila Odinga!), which then sadly ‘legitimises’ their transgressions in our partisan hearts and minds. The biggest danger this portends for us today is that tribal aggression and incitement is then camouflaged and coated with political recipe, promoted and served as our breakfast, lunch and dinner.

The situation is compounded by the fact that as the winds of hate gush against our skins, law enforcers and the increasingly intolerant ruling class exploit this situation through scaremongering to limit free speech, curtail innocuous freedoms anchored in law by the clauses in the Bill of Rights.

Of course the Government appears to have come off this trajectory, whose Sanhedrin is the iron-fisted Interior Coordination Cabinet Secretary, Maj-Gen (Rtd) Joseph Nkaissery the moment it allowed its cantankerous motor-mouths – Moses Kuria, Kimani Ngunjiri and Ferdinand Waititu – to be hauled to the Pangani Police Station cells, alongside two ladies and four men from the Coalition for Reforms and Democracy (CORD).

We must at this stage acknowledge the futility of the new-found love the suspects seemingly found, consummated and started celebrating in the cells, before shoving it on our faces through such appearances as the fish lunch with Raila at Ranalo aka Kosewe Restaurant in Nairobi.

Unfortunately, to attract both the attention of the tribe and somehow enhance their chances of re-election, or even to ‘sallenda’ (barter) their personal ethics and feeling of shame with acknowledgement by the party supremo(s), they empty their bowel contents through verbiage.

The test to this assertion is discernible from the fact that once in the cells, in their own words, shocked and feeling betrayed, they tried reaching the President and his Deputy William Ruto through a phone they had sneaked in. However as you can guess, in politics bloodhounds and charlatans are dispensable once they have served their purpose. That is not to say that the ‘CORD Six’ were any better because the motivation was the same.

We can now quickly skim through what is hate speech. Largely it is, according to the dictionary, “speech that attacks a person or group on the basis of race, religion, gender, or sexual orientation."

A US online site usaeducationguides.com goes ahead to say that, “A term for speech intended to degrade, intimidate, or incite violence or prejudicial action against someone based on race, ethnicity, national origin, religion, sexual orientation, or disability. The term covers written as well as oral communication.”

Chapter 33 of our Constitution on Freedom of Expression upholds the right to free speech for all but with limitations in cases where they translate to: (a) propaganda for war; (b) incitement to violence; (c) hate speech; or (d) advocacy of hatred that, on two main grounds: that the speech in question, (i) constitutes ethnic incitement, vilification of others or incitement to cause harm,” and or (ii) “is based on any ground of discrimination specified or contemplated in Article 27 (4)”.

Finally the Constitution in sub-section (3) of this chapter decrees that: “In the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.” In our highly ethnicised politics, where political alliances are merely constellation of tribal numbers in a see-saw arrangement, ‘hate-speech’ is the mongrel that we constantly breed and therefore the onus is on the law enforcement, Executive and Judiciary to carefully draw the line between what it is and that which constitutes the freedoms the Constitution generously doles out for Kenyans.

That would for example make nonsense of calls on the President to rule better or even unqualified claims of "misusing communication gadget". If we either miss this delicate balance or allow the President and his team led by Nkaissery to cunningly apply it to stem criticism, soon we shall be back to arrests of bloggers, civil rights activists and journalists just because of expressing opinion that goes against the grain of the script written by State House mandarins.

If this happens, we'll have gone back to those days we wish to forget.