Rights agency faults ODPP for withdrawing high-profile hate cases

Kenya National Commission on Human Rights(KNCHR) CEO Bernard Mogesa and Commission on Administrative Justice(Office of the Ombudsman) CEO Mercy Wambua holds a copy of the advisory during the launch of Advisories on the situation of Human Rights Defenders in Kenya(2020-2024) in Nairobi on September 30, 2025.[Boniface Okendo/Standard] The Kenya National Commission on Human Rights (KNCHR) has faulted the Office of the Director of Public Prosecution (ODPP) for withdrawing some high-profile cases on hate speech and incitement. Appearing before the Senate National Cohesion, Equal opportunity and Regional Integration Committee, the State agency further warned that the Computer Misuse and Cybercrimes (Amendment) Act, 2025, enacted last month, risks criminalising legitimate online speech due to its broad provisions. KNCHR Head of Research and Compliance Martin Pepela argued that the definition of prohibited speech is focused narrowly on ethnicity and race, failing to adequately include other grounds of discrimination such as gender, marital status, health status, disability, religion, age, or economic status, which also feature prominently in electoral violence. He told Senators that by relying on veiled terms or insults not explicitly covered by the National Cohesion Integration Act, politicians and public figures promote ethnic hatred. The commission stated that the legislative environment undermines human rights principle of free and informed citizen participation. "This calculated sidestepping defeats the core purpose of the National Cohesion Integration Act as a deterrent mechanism, effectively rendering the statute powerless against the primary organisers of ethnic mobilisation. The NCIC has since proposed amendments to the Act to specifically address this gap, advocating for the inclusion of 'coded language', subtle acts or gestures intended to incite ethnic hatred," said Pepela. The High Court has suspended key sections of the 2018 law (Section 27(1)(b), (c), and (2) pending a constitutional review. The court also temporarily stopped the implementation of some sections of the Computer Misuse and Cybercrimes (Amendment) Act after several petitions. The rights watchdog, however, said the prosecution of modern digital hate speech encounters most obstacles within the Kenyan Evidence Act, Cap 80. According to the commission, the Act contains two conflicting provisions regarding the admissibility of electronic evidence, resulting in destabilising judicial uncertainty. Pepela argued that judicial practice often enforces the strict requirements of Section 106B, demanding the technical certificate as a necessary condition of admissibility, a move he said was rigid as prosecutors cannot realistically obtain the required certificate from an anonymous social media user or a foreign platform's management like Meta or X. KNCHR, however, had a rough time explaining why it had failed to advise ODPP and the Judiciary. Nominated Senator Catherine Mumma wondered why DPP was abusing the nolle prosequi provision, arguing that the KNCHR should have written to ODPP over this matter. "We have had engagement with Chief Justice to address bias that exist when prosecuting ordinary Kenyans and other politicians and that the efficacy of the National Cohesion Integration Act is structurally limited by ambiguity and a narrow scope," explained Pepela. "There are successful convictions and substantive rulings against ordinary citizens and a persistent failure to hold high-profile politicians accountable, often due to political or procedural reasons. The Judiciary's engagement, however, has produced several substantive rulings illustrating the application of the law, even if resulting in non-conviction for the political elite."

Rights agency faults ODPP for withdrawing high-profile hate cases

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