Wednesday, April 6, 2011
Stephen Thuku Mbaaro has published "Freedom of Expression and Public Order: Exploring the Need for Hate Speech Legislation in Kenya". Here is the abstract.
Freedom of speech and expression is one of the most fundamental rights and freedoms and is essential in any attempt to build a democratic, social and political order. It is enshrined into most of the world’s constitutions and in other international instruments. Speech is an expression of one self and should not be curtailed unless in very clear circumstances which should be properly provided for in law and not defy reason. Normal human beings ought to be allowed to speak ,sing, write or perform other acts of art facilitating expression and to prevent a person from expressing a view or a belief or even an emotion is to deny him/herself basic dignity.
As much as it is a sacred right closely guarded by the most high of laws, it is overt that freedom of expression through speech is not absolute. It has to be regulated for public order purposes. The Kenyan constitution for example provides for situations as to when an individual has give up his/her freedom of expression. While underscoring the fact that freedom of speech and expression is not absolute and citizens are not protected in everything they choose to say, Mr. Justice Holmes in the united states supreme court decision in Schenck v. United States stated that the most stringent protection of free speech would not protect a man in falsely shouting fire in the theatre and causing panic. He went on to state that it would not protect a man from an injunction against uttering words that may have the effects of force and the question in each case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.
Free speech is one aspect of the freedom of expression and this paper aims at studying it and seeking to see whether it is possible to strike a balance between free speech and public order. Of most important will be hate speech which can be said with confidence to stem from abuse of the freedom of expression.
Hate speech is defined as that type of speech which is used to deliberately offend an individual, racial, ethnic or religious group seeking to dehumanize the individual or group or express anger, hatred, violence or contempt against them. It incites society to violence and creates tensions between people with some looking at others with suspicion and contempt based on what has been told to them regarding the target group. Kenya has been a victim of violence prompted through hate speech time and again but she has no specific law governing it. The different pieces of legislation can be said to be barely effective and not deterrent in nature and therefore this problem has continued to manifest itself time and again and mostly at times of high political tides. It has therefore been argued by some people that Kenya needs a specific law prohibiting hate speech if the vice is to be contained.It is these arguments for and against a hate speech law in Kenya that need to be studied critically with one bearing in mind that the freedom of expression and free speech is a fundamental right and freedom which is enshrined in the constitution and other international instruments that Kenya is party to.
The issue of hate speech has not been knotty in Kenya alone and other countries have similarly had to grapple with it in diverse ways that have suited the circumstances peculiar to their countries.8 In examining whether legislation against hate speech is the best way for Kenya, it will therefore be important to also consider the circumstances of the other countries and how they have attempted to deal with the issue.
Download the paper from SSRN at the link.