Wednesday, June 23, 2010



By Jerry Okungu

Nairobi, Kenya

June 18, 2010

I’m glad I attended the just concluded National Cohesion and Integration Commission workshop sponsored by GTZ and organized by Article 19, an international NGO that specializes in “global campaign for free expression”.

In her opening remarks in the middle of the workshop, Article 19 International Executive Director, Dr. Agnes Callamard warned Kenyans that the National Cohesion and Integration Act 2008 may harm media freedom in Kenya. She maintained that the provision that those who disseminate hate speech are equally liable to a term of up to 3 years in jail or a fine of no more than one million shillings could be detrimental to the work of the media.

In her wisdom, “The media cannot be held liable for what others say; otherwise we will not have any media”. In her twisted logic, “The law should not be designed to interfere with media activities which are very paramount……!”

Dr. Callamard thinks that whether to publish hate speech or not can be handled by media guidelines and regulations because media houses have editors who should be allowed to exercise their professional discretion. What she may have not known is that in this part of the world, there is a very thin line between editors and politicians. They behave alike if not work together for different political parties during elections.

This position that was being propagated by Article 19 Chief Executive at a conference in Nairobi in a forum where the NCIC was grappling with how to deal with war mongers of our time got me thinking seriously whether our foreign friends really care about our country. However, before I proceed with my personal view on this thorny issue, let me paraphrase a few reactions from other participants.

First, Dr. Musalendo Kibunjia, the chairman of the NCIC in his opening remarks was very categorical. He reiterated that his Commission would target media houses that continued to promote hate speech whatever the consequences and that already the commission was in the process of gathering the relevant evidence to that effect.

To strengthen this position, Dr. George William Mugwanya, a trained Ugandan lawyer who works in Arusha as Senior Appeals Counsel at the International Tribunal for Rwanda could not have put it any better the following day. He told the meeting that hate speech anywhere in the world cannot be protected in law. He informed the meeting that the United Nations and many other international laws were very clear that hate speech that threatens other personal freedoms and incites cannot be called freedom of speech. Hate speech that leads to criminal activity, crime against humanity, persecution or genocide cannot and should not be condoned in our laws and that Kenya must be brave enough to proscribe hate speech just like other civilized nations have done.

Let me put Madame Agnes Gallamard’s position in perspective. Here is a lady who comes to a country that almost disintegrated hardly two years ago due to the recklessness of politics, religious biases and media sensationalism. This is the same Kenya that made the world stand still as a crisis of unprecedented magnitude threatened to consume it. It is the same country that has its leading war mongers and hate speakers still being investigated by the International Criminal Court with possible prosecution for crimes against humanity in the not too distant future.

Yet when fresh hate speeches appear on the horizon with repeated callousness by known sensational media, we should look the other side because the media is paramount. Is reckless and murderous press freedom more precious than the lives of thousands of Kenyans who were burnt or hacked to death on account of their tribes? Which one is more dangerous; the politician who stands on a platform in Cherangany, Kuria, Bondo or Chuka and utters a hate speech or the broadcast station that makes it a point to repeatedly relay that message nationally without any disclaimer or a rider ten to fifteen times a day?

When such dangerous utterances are repeatedly aired on our local media houses without any caveat, do our media houses have any slightest idea what impact these inflammatory messages may have on our villages?

To go back to the piece of legislation that Dr. Callamard attacked, Article 13 of the National Cohesion and Integration Act, 2008 says the following:

“A person who uses threatening, abusive or insulting words or behavior, or displays any written material; publishes or distributes written material; presents or directs the performance of the public performance of a play; distributes, shows or plays, a recording of visual images; or provides, produces or directs a programme with threatening, abusive or insulting words or behavior, commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.

“Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or both.

“In this section, ‘ethnic hatred’ means hatred against a group of persons defined by reference to colour, race, nationality(including citizenship) or ethnic or national origins”

This law was enacted in Kenya after a tragic episode in Kenya’s history. It is the height of hypocrisy to see a foreign NGO whose view of Kenya cannot go beyond the narrow confines of local activism and workshop environment to criticize a law that was passed to protect voiceless peasant Kenyans from future turmoil they may not even understand.