The hate speech case against Gatundu South MP Moses Kuria and the shift to have it resolved out of court as opposed to going to full trial continues to elicit public debate.
This is more so owing to a previous conviction of a 22-year-old Kenyatta University Student Allan Wadi, who without legal representation took a plea of guilty and was sentenced to two years in prison.
The public has questioned why the laws seemingly applies differently for the two accused under the same crime.
— sihagagoh peter (@sihagagoh) January 15, 2015
A mere college kid jailed while people like Moses Kuria are roaming freely on the streets? Mnyonge kweli hana haki. #AllanWadiJAILED
— #PrivateDeveloper (@Maxonairo) January 2, 2015
The crime of hate speech falls under the category of a misdemeanour, a minor crime that does not need to be settled in court and for which jail terms are generally less than a year.
This is in comparison to capital offences such as murder which are triable in a court of law and which have penalties more than a year upon conviction.
While Wadi was charged with hate speech and undermining authority on account of calling for the ejection and displacement of a certain community, as well as insulting President Uhuru Kenyatta, the former charge would have benefited from alternative means of resolving it.
The alternative disputes resolution which exists as a mandate of the National Cohesion and Integration Commission, a constitutional organ that came into being in 2008 following the post-election violence of December 2007 that ran till February 2008.
Former UN Secretary General Kofi Annan who was the chairman of the mediation panel resolved with the negotiating teams from ODM and PNU that a body would be formed to bring about reconciliation and check against future incidents of incitement to violence.
Section 13 of the NCIC with is Act 12 of 2008 hence states the following as a deterrent to hate speech;
(1) A person who–
(a) uses threatening, abusive or insulting words or behaviour, or
displays any written material;
(b) publishes or distributes written material;
(c) presents or directs the performance the public performance of a
(d) distributes, shows or plays, a recording of visual images; or
(e) provides, produces or directs a programme,
which is threatening, abusive or insulting or involves the use of threatening,
abusive or insulting words or behavior commits an offence if such person intends
thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic
hatred is likely to be stirred up.
(2) Any person who commits an offence under this section shall be liable to a
fine not exceeding one million shillings or to imprisonment for a term not
exceeding three years or to both.
(3) In this section, “ethnic hatred” means hatred against a group of persons
defined by reference to colour, race, nationality (including citizenship) or ethnic or
However because hate speech is a misdemeanour likely to cause disunity among different ethnic groups the NCIC is mandated to resolve such a crime through means other than a full trial in a court of law.
Section 25 of the NCIC Act states;
(2) Without prejudice to the generality of subsection (1), the Commission
(g) promote arbitration, conciliation, mediation and similar forms of
dispute resolution mechanisms in order to secure and enhance
ethnic and racial harmony and peace;
This particular section is what Kuria through his lawyer Francis Munyororo invoked and applied for an out-of-court settlement with LSK and NCIC as the complainants in his case.
Conversations on the two cases on social media have now raised the question on whether the alternative dispute resolution mechanisms should be included in the Bill of Rights under Chapter 4 of the Kenyan Constitution as opposed to being in the NCIC Act
I’m sensing if Wadi, @ItsMutai et all were treated with the same ‘compassion’ as Moses Kuria, not many Kenyans would feel cheated.
— FERDINAND OMONDI (@FerdyOmondi) January 18, 2015
— T Shirt Nairobi (@NairobiBranding) January 14, 2015
I don’t like what Allan Wadi did, I also do not like what Moses Kuria said, but what i really hate is how the two cases have been handled!
— val (@vendesia) January 12, 2015
Section 51 of the Constitution under the Bill of Rights which deals with Fair trials for accused would best serve to have the ADR mechanism included in it and which would be communicated to the accused in a misdemeanor suit prior to trial.
So Allan Wadi was jailed unjustly going by @OleItumbi admission that Allan wasn’t informed about Cohesion law?
— Feelhipoh Ohdoorche (@feelhipoh) January 18, 2015
Double standards! Allan Wadi gets jailed,and Moses Kuria gets pardoned. There is something wrong with this system.
— Gacheri Mwongera (@nellysheri) January 12, 2015
This would offer equal opportunity to an accused for a misdemeanor crime along with provision of legal representation by the state. This then serves to further the cause for national cohesion.
(Source The Star)