Convicting Linturi will be a Sisyphean task, but Kenya has already won the moral battle

“Madoadoa” (spots) in ordinary parlance is a benign term. However, in the political context of Kenya’s violent, ethnically divided and balkanised politics, it is a term loaded with toxic menace, sinister connotation and nefarious outcomes.

The word initially appeared in Kenya’s political lexicon during the 1991-1992 political violence where, for instance, in the Human Rights Watch report, Divide and Rule, one witness stated: “They were wearing tee-shirts and red shorts and red and white clay on their faces. As they attacked, they were shouting ‘madoadoa’, which means ‘remove those spots’.”

This theme is repeated in the 2007-2008 post-election violence, where it has been noted in one report that in Kenya, terms like “kuondoa madoadoa” (removing the spots) or “references to the need… to ‘cut grass’ and complaints that ‘the mongoose has come and stolen our chicken’” were common.

So when Meru Senator Mithika Linturi used this word in a recent United Democratic Alliance (UDA) rally attended by Deputy President William Ruto, there was bound to be anxiety. Indeed, what we witnessed was the spiking of political temperatures months to the August 9, 2022 General Election.

It was interesting to observe the predictable falling-out from Senator Linturi’s utterances. “Hate Speech!” cried one side of the political divide. Not so, Ruto’s side parried – this was a comment simply meant to exhort the political isolation of leaders in the Rift Valley region who do not support the Deputy President. And anyway, haven’t other prominent Kenyans used the very word in a similar context?

It was telling, however, how fast the Deputy President and his political allies issued a public retraction and apology.

Unlike the 1991-1992 and the 2007-2008 political violence, this time the public outrage, rebuke and opprobrium was both swift and galvanised.

So what happens next? Obviously, there will be some more public sparring between rival political camps. On the legal front, however, it will be interesting to see what action, if any, the Director of Public Prosecutions Noordin Haji elects to take.

As has been noted umpteen times, the crime of hate speech is notoriously difficult to successfully prosecute and secure a conviction around.

Not protected speech

So will Haji take this route? And if he does, what are the chances of success? Here is the bad news for him should he elect to pursue this avenue: the chances of Senator Linturi or others escaping conviction for a charge of hate speech for such utterance are high.

To be sure, hate speech is not protected speech under Article 33 of the 2010 Constitution of Kenya. But what is “hate speech”?

Here is the Bermuda Triangle of hate speech prosecution in Kenya. The legal definition of hate speech is inelegant and as clear as mud while the conditions required to sustain a charge against an individual for it is almost Sisyphean. It was thus unsurprising to read the revealing analysis by Vincent Achuka and Samwel Owino carried in the January 13, 2022 edition of the Daily Nation (‘The sham that has become hate speech investigations’).

The silver lining here will likely be the fact that the swift riposte to Senator Linturi’s utterances demonstrate that Kenyans are no longer ready to tolerate politically reckless and dangerous speech. The media, in large part, contributed to this. More will need to be done, obviously: the political leadership must begin to display zero tolerance to speech that can easily catalyse the kinds of violence previously seen during the 1991-1992 and the 2007-2008 elections.

On the other hand, fair comment must go unharmed and unviolated, however brutal, grating and abrasive it is. Public awareness on the political history of violence in Kenya must be advanced through – formal and informal – education platforms, social as well as in the traditional media.

There is a need to address the social, economic, political and cultural scaffolding that allows the use of such words to not just create enhanced political anxiety but also mobilise violence in ways as dastardly and nefarious as demonstrated in our more sordid historical moments.

Obviously we all have a role to play in ensuring that Kenya emerges as a peaceful and cohesive nation where mutual respect for life, choice, lifestyle, origin, class, gender and other differences is not just tolerated but also celebrated. In this instance, however, it was gratifying to note that overall, Kenya won.

Mugambi Kiai is the Regional Director, Article 19 East and Horn of Africa. The views expressed here are personal.