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“Unpacking hate speech in Kenya and Africa”
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“Unpacking hate speech in Kenya and Africa”

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Brian Dan MigoweFreedom of speech is protected in Kenya’s constitution, writes Brian Dan Migowe, 24, a Commonwealth Correspondent from Kenya, but laws also ensure that free speech isn’t used to incite or promote hatred.

Many scholars, academics and legal practitioners will agree with the school of thought that when it comes to freedom of expression and hate speech, there is no thin line; to the contrary there is a thick line if I may say.

Article 33 of the constitution of Kenya, 2010, provides for freedom of expression which includes the freedom to seek, receive or impart information or ideas, the freedom of artistic creativity, academic freedom and freedom of scientific research. It should, however, be noted that the right to freedom does not extend to propaganda for war, incitement to violence, hate speech or advocacy for hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm.

In the exercise of this right of freedom of expression, every person shall respect the rights and reputation of others. It is therefore with this constitutional qualification that this same right can be limited to the extent reasonable and justifiable in an open democratic society such as Kenya. A right can be limited only by  law, and only to the extent that the limitations are reasonable and justifiable.

In Kenya, democratic society – based on human dignity, equality and freedom – is provided for in article 24 of the constitution, taking into account relevant factors including the nature of the right or the fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation, and the need to ensure that the enjoyment of rights and fundamental freedoms by one group does not prejudice the same rights of another group. Also considered is the relation between the limitation and its purpose, and whether there are less restrictive means to achieve the purpose.

Kenya, like many African states, has entrenched this right in the constitution. The big question is enforceability.

Freedom of expression is a fundamental human right guaranteed in international as well as regional human rights instruments, such as Article 9 & 19 of the International Covenant on Civil and Political Rights and Article 9 of the African Charter on Human and Peoples’ Rights. These human rights treaties, however, anticipate at least two circumstances subsequent to which the state may intervene in the absolute right to freedom of expression.

First, the state has the right to impose limitations on the right to freedom of expression, using different levels of protection for various types of expression. For a limitation to be allowable it must be provided for by law, it must pursue a legitimate purpose, and such interference must be necessary in a democratic society. Legitimate purposes include protecting the rights or reputations of others, national security, public order, public health or morals.

Second, human rights law anticipates circumstances under which expression may be suppressed or, in human rights language, ‘prohibited’ totally. Article 20 of the ICCPR requires parties to ‘prohibit by law’ “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence…”.

Similarly, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination requires parties to “condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form”. In particular, it obliges parties to criminalise “dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin”, as well as participation in “propaganda activities, which promote and incite racial discrimination”.

The regulation of expression is thus clearly within the capacity of states in terms of international human rights norms. A critical determinant of whether expression should be prohibited or limited, therefore, is: does the expression in question perpetuate discrimination of a group? Does it balance between freedom of expression and the obligation to protect against discrimination?

Photo: http://mrg.bz/vlQq7m

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About me: I am a law student with a passion for writing and youth advocacy. I observe people, nature, the environment and daily life and am enthusiastic about sharing them on pen and paper.

I am an open-minded individual who acknowledges the diversity of the world’s population. Sometimes I am awed by how life plays out, but in writing I make the story as I want it. My hobbies are swimming and indoor games.

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Opinions expressed in this article are those of the author and do not necessarily represent the views of the Commonwealth Youth Programme. Articles are published in a spirit of dialogue, respect and understanding. If you disagree, why not submit a response?

To learn more about becoming a Commonwealth Correspondent please visit: http://www.yourcommonwealth.org/submit-articles/commonwealthcorrespondents/

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