Why every Kenyan should be free to hold the so-called prayer rallies

By Okula Jack

In the recent past, at least since the International Criminal Court indicted four Kenyans believed to bear the greatest responsibility for post-election violence, the country has witnessed numerous prayer rallies.

Notably, Deputy Prime Minister, Uhuru Kenyatta, and Eldoret North, MP William Ruto, have been the face of the prayers.

They have caused consternation among political players, who have termed them political steps calculated to incite the public to violence or acts bordering hate speech.

It is my intention to scrutinise such allegations with a view of answering the legal questions.

A prayer has been defined by the English Oxford dictionary as a word spoken to God for thanksgiving or asking for help.

The question then is, do we, as Kenyans have a right, constitutional or otherwise, to pray?

Under Chapter 4 of the Constitution of Kenya, the Bill of Rights and specifically Article 32(2) states as follows: "Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship."

There could be no better worship than prayer, and that freedom could not have been more express.

A rally is a public meeting or assembly whose intention is to support an idea, political or otherwise.

The freedom of assembly has been eloquently spelt out in Article 36(1) of the Constitution thus: "Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind."

And with this freedom, comes the freedom of expression as outlined in Article 33 of the Constitution.

The only limitations to the freedom of expression are propaganda for war, incitement to violence, or hate speech. It is worth noting that such freedoms are sacrosanct. The Constitution does not give them, but rather spells them out. They emanate from the fact that we are human beings and they are, therefore, inherent and inalienable. Do the prayer rallies constitute incitement to violence or hate speech? Incitement to violence falls under Section 96 of the Penal Code, Chapter 63 Laws of Kenya. This is contravened if, without lawful excuse, one utters or publishes words or acts in a way calculated to, among other things, cause death or injury to a person, class, community or body of persons.

So, has it been the intention of Uhuru or Ruto to cause death and physically injure any person, class of people or community by utterances or publications from such rallies? Nothing could be farther from the truth. That would be stretching criminal law to unimaginable heights.

The two are exercising their political rights as enshrined under Article 38 of the Constitution. ‘Tuko Pamoja’, which has been the call of such rallies, is not anywhere near incitement to violence. Hate speech is covered under Section 13(1) of the National Cohesion and Integration Act. It puts into legal radar any person who, among other things, uses threatening, abusive or insulting words or behaviour, displays or publishes written material, with the intention of stirring up ethnic hatred. No one would say that hate speech has ever been the intention of such prayer rallies. If this were the case, the National Cohesion and Integration Commission would have invoked Section 25 and recommended the prosecution of the rallies organisers to the Director of Public Prosecutions who would in turn invoke Article 157(6) of the Constitution and bring the suspects to face justice.

For any Kenyan to abrogate himself/herself the responsibility of being the watchdog is to sabotage NCIC functions as outlined in Section 25 of the Act. Individuals take part in the rallies and no community has been left behind.

Indeed, in a competitive and democratic political process, and as the General Election draws near, political players are trying to outdo each other. To say such competition is meant to incite the public and constitute hate speech is undemocratic. As to whether the prayers should focus on the victims of post-election violence is a moral, but not legal question.

The writer is a lawyer and political commentator