The threshold of incitement hate speech law in Kenya and the question of whether it can work

A man in a red shirt climbs onto the flatbed truck. He is not a Member of Parliament. He is not yet anything. He wants to be something in 2027, and this is how one becomes something. He speaks for eleven minutes. Ten of those minutes are unremarkable, the usual liturgy of roads, bursaries, county tenders and the perfidy of the incumbent. In the eleventh minute he says something else. He says it in Kiswahili, then repeats it in the vernacular for emphasis, and the second version is not a translation so much as a sharpening. He speaks of people who came here, who were given land by a government that did not consult the owners of that land, who now hold the shops along this very road, and who will be counted in the register in 2027 as though they belonged. He does not say what should be done about them. He says that a time is coming when the question will be settled. He says the word “settled” twice. The crowd, or part of it, makes a sound that is not quite a cheer. Someone films the eleventh minute on a phone. The clip has been shared in perhaps four hundred WhatsApp groups. Soon a complaint has been lodged with the National Cohesion and Integration Commission. By the following month, if precedent is any guide, one of three things will have happened. The Commission will have summoned the man, he will have apologised in front of cameras, and the matter will have ended. Or the file will have gone to the Office of the Director of Public Prosecutions and remained there. Or, least likely of all, he will have been charged under section 13 of the National Cohesion and Integration Act, and in eighteen months a magistrate will acquit him because the prosecution could not prove that he intended to stir up ethnic hatred, and because the Kiswahili word he used has four meanings, and because the phone that recorded him was never produced with a certificate under section 106B of the Evidence Act. There is a fourth possibility, and events of the past week have made it the most instructive of all. If the man in the red shirt is aligned to the wrong faction, and if his eleventh minute can be construed as a threat to persons who support the government of the day, he may find that none of this careful machinery is engaged at all. He may simply be arrested. That is the Kenyan hate speech problem, compressed into a single afternoon. It is not, contrary to a great deal of comfortable commentary, a problem of missing law. Kenya has more law on this subject than most jurisdictions in the Commonwealth. It is a problem of threshold: of where, precisely, the criminal law draws its line between speech that is ugly and speech that is culpable, and of whether the line as currently drawn is capable of being applied by a magistrate at Webuye or Kapsabet on a Tuesday morning with a part-heard cause list and a prosecutor who received the file that week. It is also, and increasingly, a problem of who is asking.