The Kenyan government is waging a war against online hate mongers with what would appear to be a zero-tolerance policy. In an unprecedented move two chat group administrators have been arrested. They were charged with sharing hate messages on Whats App that threatened national security and face an additional charge of spreading alarming propaganda on social media.
Like many other countries, Kenya has charged people with hate speech before. Recently in the UK, a Facebook user was charged with spreading hate messages against Muslims. Rwanda has also successfully charged various people with hate speech.
The difference in this particular case is that WhatsApp administrators have been charged. However, this is not the first time a chat group administrator has been prosecuted for hate speech. In a similar case in India, the government arrested WhatsApp administrators for offensive posts about the prime minister.
As Kenya geared up for its general election in August it was already grappling with hate speech. This reached a crescendo in the post-election period as supporters of the two opposing political groupings the ruling Jubilee party and The National Super Alliance – engaged in digital warfare.
Fearful of a rerun of previous post election violence, police were well prepared this time.
Under Kenyan law hate speech is a criminal offense that carries a five-year jail term and a million shilling fine. One of the suspects allegedly shared a hate message that threatened to slaughter members of a certain community.
The arrests have proved controversial on two grounds.
The first is that the government has been criticized for violating the constitutional freedoms of expression and the media.
The second is that the Whats App users felt safe because of the anonymity provided by the platform. Moreover, the Kenyan authorities have shown reluctance to prosecute hate speech cases. Earlier in the year, politicians accused of hate speech were released due to lack of evidence and the absence of asupporting legal framework.
But I believe there are grounds for a successful prosecution under Kenyan law.
On the issue of freedom of expression, Kenya’s constitution enshrines the right to freedom of speech. But this doesn’t include allowing propaganda for war, incitement to violence, hate speech, advocacy of hatred, discrimination, ethnic incitement, vilification of others, and incitement to cause harm. This is in line with international law which protects freedom of expression, but has limitations.
During the election period thousands of Kenyans used social media to express their opinions. Many of the conversations pitted members of different ethnic communities against each other. This type of hostile communication was a spillover from the 2013 general election period when online hate speech first reared its ugly head.
This year many Kenyans retreated to the privacy of their Whats App groups to speak freely about their political affiliations. Again, a good number of these conversations were inflammatory.
It’s understandable that Kenyan authorities felt they needed to act. But what happens next is unclear given that the law hasn’t caught up with the implications of people using various social media platforms to ventilate.
There have been a number of cases in which individuals have been charged with hate speech. And on their part, newspapers, radio stations and media enterprises can also be held criminally liable for publicizing threatening, abusive or insulting material intended to stir up ethnic hatred.