IN June 2016, eight members of Kenya’s parliament were locked up for several nights in police cells during a crackdown against what authorities described as hate speech.
All were accused of stoking ethnic passions through public statements and in social media posts. But in spite of all the drama leading to their court appearances, the lawmakers were soon freed for lack of concrete evidence.
This wasn’t the first time that charges like this had collapsed. And it wasn’t to be the last. At the start of 2017, a governor in one of Kenya’s 47 counties escaped jail on charges of ethnic incitement for lack of evidence. He’s alleged to have made disparaging remarks against the opposition leader Raila Odinga.
Hate crimes, ethnic cleansing and inflammatory speech have often found fertile ground in Kenya’s election campaign period. In the run up to the 2007 elections more than 1,000 people were killed in ethnic violence stoked by political incitement. It comes as no surprise that law enforcement agencies have adopted a defensive stance ahead of every election since.
Hate speech is again in focus as Kenya prepares for national polls in August and not just law enforcement is alive to potential problems.
The regulator has also warned that it could pull the plug on social media if national security comes under threat.
But it remains to be seen whether this combination of measures will insulate Kenya from the ever present ghost of hate speech.
NATURE OF HATE SPEECH
Hate speech is speech that threatens, insults or promotes hatred of groups on the basis of race, religion, ethnicity or national origin.
Its interpretation is often problematic because of the constitutional rights to freedom of expression. This challenge has given rise to different interpretations all over the world.
In the US freedom of speech and expression is upheld in the first amendment. In Europe hate speech has been heavily regulated. Germany in particular takes a hard line against hate speech online. Police in Germany recently launched a number of raids amid a spike in hate speech against immigrants and refugees.
In general, several factors are used to determine whether speech is hate speech;
•Context of the speech: Is it likely to be inflammatory, discriminatory and targeting a particular group or not?
•The speaker: Is he or she influential?
•Audience: Is it likely to react violently or not?
•Content: Is it inflammatory, discriminatory, or hostile towards a targeted group?
•Historical context: Have similar statements, such as at public rallies, led to ethnic violence?
These factors have to be weighed against the tenets of the 1966 International Covenant on Civil and Political Rights on freedom of expression. These guarantee the right to hold opinions without interference. This includes freedom to seek, receive and impart information and ideas of all kinds.
Kenya is a signatory to the covenant and the provision is mirrored in Kenya’s Bill of Rights.
But the Bill of Rights provides limitations under article 33(2) which states that the right to freedom of expression does not extend to:
propaganda for war, incitement to violence and hate speech, or
advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm
CATALYST FOR CRIMINAL OFFENCES
Kenya has further safeguards under the National Cohesion and Integration Act. Hate speech may include words or behaviour, the display, publishing or distribution of written material and public performances of plays and recordings.
This provision can be used to monitor, remove or block content, including online content. It has been used to compel mobile service providers to monitor hate speech internally. In the run up to the March 2013 elections, it was applied to fight hate speech via SMS and on the internet.
A great deal of attention has been paid to the abuse of mobile communication and the Internet in election years since the violence in 2008. A 2012 report – Umati: Monitoring Online Dangerous Speech in Kenya – found that dangerous speech was targeted at ethnicity and religion. It found that 90% of online dangerous speech was inflammatory. Facebook was the main source.
It’s likely to be different this time around with Whatsapp emerging as an important instant messaging channel for text, audio and video in addition to Facebook and Instagram.
INTERNET TOOL KIT
Kenya doesn’t actively filter or block internet content. On the contrary the government has encouraged unrestricted access to social networking platforms and communication application. Contingent to this is making the cost of internet connectivity affordable and encouraging mobile phone usage.
But the Communications Authority has regulatory powers under the licensing provisions for international voice or data services. In addition, the Preservation of Public Security Act has a provision that imposes criminal liability for journalists suspected of compromising public safety, public order, morality or defence.
The Prevention of Terrorism Act also allows limitation of the freedom of expression. This can also be used by the government to regulate and monitor social media platforms.
What can Kenya do to flag hate speech on social media? Among the tools of trade is the so-called Blue Coat Packet Shaper, an appliance that can help control undesirable traffic by filtering traffic by content category. It was detected in Kenya in January 2013 – two months before the last election – as well as in 18 other countries around the world, including China, Bahrain, and Russia.
The installation of an early warning system by security forces can support the monitoring of social media content. The use of applications on the social media platforms like the ones that were used by Umati during 2013 polls to monitor hate speech can also be used.
Kenya also has legal recourse to laws that allow online communication to be intercepted and information collected. But they have been criticised for breaching privacy.
The more recent enactment of Access to Information Act of September 2016 has provisions which allow the government to request and collect information held by private entities.
This is for investigating a crime, for example terrorism as well as hate speech.
Kenya may have the right to privacy protected in the Constitution but it does not have a data protection law. A bill to this effect has been pending for years. In the absence of this law, the government can use the loophole to survey, scrutinise and intercept online content.
But it would still need to cite a legitimate expectation of either interference with national security, public safety and public order. With a history of violence fuelled by hate speech, authorities can cite the frequent acts of dangerous language and an impending general election as legitimate justification.
The author is Lecturer, Information Technology and the Law, Mount Kenya University