Musicians face five years in jail

By WAHOME THUKU

Three Kikuyu musicians now face five years or more in jail each after they were charged with incitement to violence and hate speech.

Beside a mandatory jail term of upto five years for incitement charges, the three could be fined up to Sh1 million each if found guilty of hate speech.

John Muigai alias Muigai wa Njoroge, Mark Kamande wa Kioi, and John Ng’ang’a alias John De Mathew were arraigned before a Nairobi court charged separately with incitement and hate speeches in their songs.

But through their five defence lawyers, the musicians turned the heat on the National Cohesion and Integration Commission (NCIC) and accused it of promoting tribal hatred. They said they would take the matter to the High Court for determination of constitutional issues.

The trio were charged before Senior Principal Magistrate Elija Obaga at the Milimani Law Courts in Nairobi. Muigai, a popular gospel singer and music producer, was charged with two counts of incitement to violence and one of hate speech.

He was accused of making the remarks intended to cause violence and hatred between the Kikuyu and the Luo community in his hit, Hague Bound produced in February, last year in Nairobi.

Kamande also faced two charges of incitement to violence and one of hate speech. He allegedly made the utterance in a song Uhuru ni Witu (Uhuru is Ours) produced in February.

Ng’ang’a popularly known to his fans as De Mathew faced one charge of incitement to violence and two of making ethnic and racial contempt in his songs Uhuru ni Witu and Mwaka wa Hiti (The Year of the Hyena).

Police chose to charge them with incitement under Section 96(a) of the Penal Code, which attracts up to five years jail term without an option of a fine. However, the prosecution will have to prove that the words implied in the songs would be desirable to cause death or physical injury to a person, a community, class of persons or body of persons.

Igniting hatred
The charges of hate speech under the National Cohesion and Integration Act of 2008 attract up to Sh1 million fine or three to five years in jail.

There was a light moment as one court clerk read out the charges in Kikuyu and the other made an English translation of the offensive words.

One charge against Ng’ang’a translated thus: “Before Jesus was crucified, he stood in the court presided by Judge Pontius Pilate and answered all the questions. The judge ruled he had no case. He asked the crowd if he would release Jesus or he be crucified instead and the crowd asked for the thief to be freed and for Jesus to be crucified.”

The audience laughed when the clerk said the extract from the Bible was intended to cause violence between the Kikuyu and the Luo communities.

Police claim the songs, which are packed with proverbs, riddles, and metaphors contained hate speech intended to incite feelings of hatred, contempt, and discrimination among the Kikuyu or the Luo.

But the musicians’ lawyers Gichuki King’ara, Mbiyu Kamau, Kibe Mungai, JM Waiganjo, Gathi Irungu, and George Kimani accused NCIC of igniting hatred between the Kikuyu and the Luo.

“The NCIC through its incompetence is inciting the hatred between the Kikuyu and the Luo communities. Words that have never been incitement are now given an incitement interpretation,” lawyer Mungai said.

King’ara, Mbiyu and Mungai said they would be taking the matter to the High Court to challenge the constitutionality of the charges and the trial.

He said the cases were intended to present one-sided political opinion on the debate revolving around the prosecution of Kenyans at the International Criminal Court, which features in one of the songs.

He argued that given the nature of the charges, the magistrate court could not deal with the matter before the ICC trials are concluded.

But the prosecution led by Police Superintendent Bridget Kanyai said the cases were totally different and independent from the proceedings before the ICC. The three who had been out on Sh10,000 police bond were released by the court on Sh100,000 cash bail each. The cases will be mentioned on July 18, but will be heard on various dates in August.