An Analysis of the prosecution of hate speech in Kenya - The Common good perspective
Opiyo, Charles Lwanga
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Hate speech is the new narrative in Kenya’s political discourse. This rhetoric has been employed to galvanise one’s supporters against an opposing group. The opposing group is often another ethnic community. This is validated by the sources of information considered in this study: journal articles, statute, and case law all seem to recognise that ethnicity is central in Kenya. Over and above being ethnic, hate speech presents a tangible danger to the fabric of society, the common good. A damning example of the realisation of this threat is the 2007 Post-Election Violence. The Director of Public Prosecutions has been charged with dealing with instances of hate speech via prosecuting them, with the aim of convictions. In this way, the law can act as a deterrent. The reality however, paints a different picture. Instances of acquittal of politicians based on procedural technicalities and the use of nolle prosequi orders without sufficient legal cause have become the norm. The inconsistency in the application of prosecutorial powers has rendered hate speech laws in Kenya nigh ineffective in dealing with hate speech perpetrated by persons of influence. This study seeks to elucidate the extent of these inconsistencies and attempt to establish a root cause. It will also show that there is in fact, a cause and effect relationship between hate speech and the occurrence of violence. In doing so, another approach to prosecuting hate speech will be suggested, based on instances of effective hate speech prosecution in case law and theories of legal scholars.