Difference between hate speech, insults in spirit of give-and-take

The media will be held responsible for all the content they publish that contains hate speech, Head of Public Service Joseph Kinyua said on Wednesday in the wake of the politically instigated riots in Kenol, Murang’a, in which two people died.

He went on to say that the media shall practice responsible and sensitive reporting, air programmes that promote national unity and cohesion and shall not publish words that incite.

Journalists do not like being given orders by government officials on how to report. The Constitution guarantees them freedom and independence to operate. The State is forbidden from exercising control over the media or anyone working for the media.

So, reading the riot act to journalists was uncalled for. The media was not the cause of the Kenol riots. Of course, that is not to say the media has not in the past inflamed passions.

Negative role

The classic example is the negative role played by the media in fuelling violence in the period leading to and after the 2007 elections. Media scholars say the Kenyan media failed to report hate speech responsibly and, thus, helped to incite violence.

Mr Kinyua was within the law in his warning. The National Cohesion and Integration Act makes hate speech an offence. This offence applies not only to those responsible for hate speech but also individual journalists and media organisations who report it and, therefore, help to spread it.

His warning also conforms to the Constitution, which, although it guarantees freedom of expression, says this freedom does not extend to hate speech and incitement to violence, war propaganda and advocacy of hatred that constitutes ethnic excitement, vilification of others, or incitement to cause harm.

The Guidelines for Election Coverage, published by the Media Council of Kenya in April 2012, also advocate the same approach. The guidelines were compiled from contributions by the media, including Nation Media Group. The media committed themselves to adhere to the guidelines.

The problem — and Mr Kinyua’s warning does not change this — is distinguishing between hate speech and the cut-and-thrust of political debate, without which political reporting becomes dull and unexciting. Or, simply put, the problem is how to tell the difference between hate speech and the give-and-take of politics, otherwise known as insults.

Freedom of speech

No matter how shocking, disturbing or hurting, an insult, in most cases, falls within freedom of speech, which is guaranteed in the Constitution with certain exceptions.

However, hate speech and insults are related. An insult can become hate speech and it is important for journalists to know the difference between the two to avoid acting like a censor and applying the Kinyua orders indiscriminately.

Hate speech, in the language of the National Cohesion and Integration Commission (NCIC), is “the use of threatening, inciting, abusive or insulting words or behaviour, or display of any written material with the intention of stirring up ethnic hatred”.

The NCIC says for words to amount to hate speech they must maintain a sphere of operation that is not restricted to the moment of the utterance itself — that is, the said words must express or imply a built-in call to action.

“Second, and arising from the first dynamic, hate speech is constructed in the context of inter-group relations. A statement which would otherwise be totally innocuous in a mono-ethnic situation may turn into hate speech when used in an inter-ethnic setting.”

All said, the give-and-take of political debate, which often amounts to insults, is the right to say whatever one likes and it does not matter if it is unpopular or uncouth. It is free speech, essential to democracy but limited by hate speech.

The Public Editor is an independent news ombudsman who handles readers’ complaints on editorial matters including accuracy and journalistic standards. Email: [email protected]. Call or text 0721989264.