Court quashes NCIC decision to ban 'hatupangwingwi' and 'watajua hawajui'
Lawyer Felix Kiprono Matagei outside Milimani Law Courts. He is representing petitioners in a case challenging the ban on hatupangwingwi term.
The High Court has quashed a decision banning use of the terms hatupangwingwi and watajua hawajui.
The National Cohesion and Integration Commission (NCIC) on April 8, 2022 said the two, among others, were hate terms that should not be used.
But Justice Antony Ndung’u disagreed, allowing a petition filed by Chama cha Mawakili Limited (CML) through lawyers Felix Kiprono and Vincent Yegon challenging the ban of the terms.
Kiprono had urged the judge to grant the order quashing the ban announced by the NCIC, before it swings to institute criminal proceedings against Kenyans who use the two alleged hate terms during this campaigning period.
In a 18-page judgement, Justice Ndung’u ruled that the terms do not constitute hate speech.
The judge said no evidence has been availed of the two terms causing discontent amongst various communities in the country.
Hate speech
He said CML has established a case warranting the grant of the order sought.
Declared Justice Ndung’u: “An order is hereby granted to quash the respondents decision made on April 8, 2022 vide Hatelex: A lexicon of Hate Speech Terms in Kenya baaning and /or classifying –“Hatupangwingwi” and “Watajua hawajui” as hate terms.”
The petitioners said the terms are contained in a song composed by artist Tony Njuguna aka E-Xray and Deputy President William Ruto where he is quoted stating “wakenya wamesema hawapangwingwi hata mimi hasla sipangwingwi.”
The judge said NCIC did not notify the general public about the intended ban as provided for under Section 7 of the Fair Administrative Action Act, 2015.
“The word/terms –hatupangwingwi and watajua hawajui classified as hate terms and or banned by NCIC are aphorisms of freedoms of expressions used by Kenyans and does not amount to hate speech,” Kiprono stated.
CML had argued that unless the court intervenes, NCIC and other state agencies would institute criminal or related proceedings against millions of Kenyans exercising freedom of expression by usage of the two terms.
Rights of Kenyans
CML had further stated: “there is a real likelihood the rights of Kenyans to equal treatment and benefit of the law and human dignity will be curtailed.”
Kiprono and Yegon had presented evidence that no reasonable authority properly directing itself as to the applicable law could have concluded that the hatupangwingwi and watajua hawajui terms as hate speech.
