Mannerless and lewd remarks need not be deemed criminal

About a fortnight ago, two politicians, one a legislator and the other a senior official of a political party in Kenya, exchanged lewd and unsavoury language in the course of campaigns for a by-election that was held last month.

The exact language used by the politicians in reference to each other is too unsavoury to be recorded on ink and paper in a newspaper of this calibre.

However, put politely, one was a misogynistic and the other laden with sexual bravado.

Soon thereafter, the media was full of supposed exclamations as to why these otherwise ill-mannered exchanges should take place in public.

The further surprise for me was that this then morphed into allegations of hate speech, particularly on the part of the utterer of the misogynistic words. A few days later, the politicians were summoned by Kenya’s National Cohesion and Integration Commission (NCIC) on grounds that the lewd exchanges constituted hate speech.

The NCIC is established under a law and given the responsibility of promoting ethnic and cultural integration by monitoring and trying to deal with ethnic discrimination within the country.

Ethnicity as used in that context includes racial, cultural, tribal or even religious grounds.

Ethnic discrimination

The agency has the powers to monitor instances of acts that would constitute ethnic discrimination and prosecute persons found guilty of such acts.

One of the offences created under that legislation is the offence of hate speech. It defines hate speech as the use of abusive or threatening behaviour or words, which are likely to stir up ethnic hatred. It is against this definition that the lewd exchanges became the concern of the commission and had the politicians summoned to its offices.

While I would deprecate abuse and lewd exchanges of the kinds that took place during the said political campaigns, I share the scepticism of many who doubt whether that offence of hate speech as framed in the law of Kenya would pass muster in the context of free speech from the constitutional dimension.

Mistaken concern

The censorious regulators and supposed masters of decorum in this country misread the law and the constitutionally established freedom of speech whenever they say that the constitutional liberty to free speech should be exercised “responsibly”, whatever that means.

The worst part is that some of them are lawmakers and, worse still, lawyers as well.

There is the mistaken concern that free speech means that the speaker must express himself politely, sensibly, softly, respectfully and with the decorum that should not be offensive to the person at whom the speech is directed.

If that were the case, then free speech would not be a right but a privilege.

This concern is not limited to Kenya.

Just around the same time as these events occurred in Kenya, the Court of Appeal in the United Kingdom made a decision that Kenyans and the various censorship regulators would do well to heed.

In distinguishing between free speech as a right, the judges held that the freedom of speech included the right to offend the hearer.

In an appeal in which a feminist had appealed against a conviction for hate speech in February last year , Lord Justice Bean and Justice Warby of the United Kingdom court of appeal said that “freedom only to speak inoffensively is not worth having”.

The convict had been sentenced to a two-year custodial sentence and a fine for online remarks in which she insulted by referring to a transgender woman as “a man, racist and a pig in a wig”. Charges of hate speech were brought against the feminist under England’s Communications Act 2003. The trial judge convicted her for these words, said that the words were beyond being insulting and irresponsible, offensive and contributed nothing to the public debate.

She appealed against the judgment because the law under which she was tried constituted infringement of the right to free speech and that merely offensive words could not be criminalised.

Freedom of speech

In other words, she argued that trying to make it an offence not to insult or offend people was an undue abridgment of the freedom of speech.

In agreeing with the appellant, the judges of the court of appeal added as follows, “Freedom of speech encompasses the right to offend, and indeed to abuse another. In their reasoning, an important right such as freedom of expression must contend with the fact that liberty is the norm and restraint the exception.

 A right must not only be exercised when all will be happy and accepting of the manner in which it is exercised. Therefore, legislation should not be enacted with the effect of chilling free expression just because sections of the society will find it annoying or inconvenient.

This decision in the United Kingdom comes against the backdrop of the fact that the world today seems to be sliding towards “soft totalitarianism” of censorship where free speech is limited with the fact that the thinly skinned must not be offended and that disagreeable language or ideas must be curtailed under the offence of hate speech. For example, the challenge to gender reassignment in some countries constitutes hate speech.

This level of censorship by policing words, ideas and forms of expression under hate speech does not make a society any better.

All it leaves is a society in which we think there is a right for uniformity of belief and method of expression. Put differently, I must be addressed only in the terms I find proper by my standards and that people must disagree with me politely.

The danger with this is that it creates a situation of some topics and issues that cannot be questioned or even challenged for being improved or even clarified. This creates an insular and pedantic society of sacred ideas, people and topics in which received wisdom is eternal. The very essence of freedom of speech is that societies, individuals and nations are better when ideas are debated freely and perspectives improved and refined by constant engagement and questioning. In this way, errors are revealed and correct visions affirmed.

Abhor debate

The other danger to this is that it creates a society of the thin-skinned who do not want criticism and abhor debate or challenge to their beliefs and ideas or even perspectives. The shortsighted then assume that everyone is owed praise rather than objectivity and shielded from reality by parochialism and groupthink.

In such a situation, there is no freedom of speech and expression, just privilege to revel in self-promotion and immunity from evaluation. There would be no rights but mere privilege to be feeble-minded.

In a truly democratic society where freedom of speech would make sense, we must all accept that our ideas and expressions shall be challenged and that we shall in the process receive communication that will be unpleasant , even insulting at times and regardless of their utility.

The use of hate speech to protect people from hearing unpleasant news or information does not serve the society at all, whether in the short or in the long term. For this reason, I would say that simply lewd and mannerless utterances should not be the subject of any criminal sanctions.