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Aquitted: Wifred Machage, Christine Miller and Fred Kapondi – But are we free to speak?


The Kenya Forum does not go in for ‘hate speech’; we are all in favour of ‘freedom of speech’. Neither term can be easily and precisely defined. Commonsense is required in such judgements and the benefit of doubt should surely err on the side of ‘freedom’.

Wilfred Gisuka Machage, Member of Parliament for Kuria, his Mt Elgon ‘counterpart Fred Kapondi and businesswoman Christine Nyagitha Miller were cleared on Wednesday (‘Machage not guilty of hate speech’, Standard, Dec 15) of charges of ‘hate speech’ dating back to the ‘No’ campaign in last year’s referendum on Kenya’s new constitution.

Chief Magistrate Gilbert Mutembei decided that the prosecution had failed to make its case against the three, or comply with the ‘rules regarding electronic evidence’ regarding speeches they were alleged to have made during the launch of the ‘No’ secretariat’s campaign in Upper Hill, Nairobi last year, that led them to being charged with counts of ‘incitement to violence’.

Of the four witnesses called to give evidence against the defendants only two, both journalists, were actually at the rally. One said he was busy filming the event and could not remember what had been said. The other said he didn’t even hear what was said.

Aside from the fact that a case brought on such flimsy grounds should never have been allowed to get to court and waste so much time and public money, it, together with another item of news, should give us pause for thought.


Mr Mutembi’s decision was described as ‘a slap in the face of the National Cohesion and Integration Commission’ (NCIC) who had brought the case to court.

This is the same NCIC that on the same day as the two MPs and one businesswoman were acquitted were reported in the press declaring that they will monitor Facebook and Twitter users in Kenya to ensure that they do not incite violence or use ‘hate speech’.

Dr Mzalendo Kibunjia, chair of the NCIC, said that they were working with the police to monitor material posted on social media outlets in the run up to the next election. Apparently the NHICC have ‘set up a department to deal with [such] material’.


Let us consider just three aspects to these two items of news.

First, as far as the Kenya Forum is aware, Section 33 (2) (c) of the constitution under ‘Freedom of expression’ that says ‘the right to freedom of expression does not extend to… hate speech’ has yet to be defined in terms of what is meant by ‘hate speech’. The Forum cautions that one person’s ‘hate speech’ is another person’s ‘freedom of speech’.

Second, the Kenya Forum doubts if the three people acquitted of ‘hate speech’ and ‘inciting violence’ on such weak evidence would have even been questioned if they had been on the ‘Yes’ campaign. In short, the Forum fears that Section 33 (2) (c) of Kenya’s new constitution will be used by the powers that be at any given time (and it will change depending who is in power), to shut up their opponents.

Third: there are over 1.2 million users of social media sites in Kenya and over 4 million Kenyans using the Internet. How in heaven’s name, asks the Forum, is even a whole ‘department’ of the NCIC going to monitor them, even if it were desirable for them to do so?


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