“The Bill of Rights applies to all law and binds all State organs and all persons. Every person shall therefore enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom,”.
This is a fundamental Chapter in our Constitution and indeed all progressive constitutions in other democracies in the world.
Without this Bill of Rights, free speech or expression, association and human dignity amounts to nothing.
Even free media cannot exist and operate in the absence of Bill of Rights. Social media would have no place or part to play in the society.
It is therefore disheartening to note that the National Cohesion and Integration Commission (NCIC) has banned Kenyans from using certain phrases and words, ostensibly because such could cause violence, conflict, misunderstanding, chaos, provocation, harm, depression, envy, jealousy, bad blood, collision, discomfort, fear, apprehension, meanness, apathy, danger and damage.
The above emphasis is intentional to highlight the folly of trying to curtail freedom of expression as provided for in our Constitution.
The mandate of NCIC is to address and reduce inter-ethnic conflicts by among other briefs, ensuring it proactively and actively monitor the socio-political and ethnic dynamics in the country.
Since its establishment, the Commission has pronounced itself on several issues of concern but it is yet to make any impact on the ground.
The commission is among the other toothless independent bodies, which with all due respect must up their game or be removed from our Constitution all together.
Why this commission has never found it necessary to issue such a ban in the past is also known only to itself.
One can justly conclude that this being the season of political campaigns, the NCIC has found it in order to gag politicians’ vocal cords.
How the commission intends to enforce the ban is difficult to determine because by any chance it succeeds, almost all Kenyans above 18 years and who are participating in this year’s general election shall be locked up for flouting the ban.
The danger of interfering with freedom of speech is obvious.
Maybe the commission has forgotten that in our Constitution and the legal jurisprudence, freedom of speech is qualified.
Every citizen enjoys freedoms in as far as such freedoms doesn’t infringe on freedoms of other citizens.
The NCIC has completely forgotten that under the law, any act of commission, including what it refers to as hate speech is punishable by our penal code.
In the realm of freedom of oral and written speech, any citizen including the natural person (private and public bodies) can seek legal redress under the defamation and libel laws.
In this regard, just like the Kenya Police Service cannot ban alcohol drinking but can arrest a drunkard for being disorderly, so can NCIC not fetter freedom of expression but can have those abusing such right prosecuted under the law.
Furthermore, by curtailing the freedom of expression, citizens are denied a chance to know the true nature or character of the leaders that are seeking elective positions.
Unless the commission is taking citizens for idiots, many a politician and technocrat have found themselves in trouble for using unsavoury language.
Such language ranges from soft humour that boomeranged against the speaker to callous words that has dimmed the careers of many.
Kenyans will recall, Robinson Githae when he advised them to try and eat rats in the midst of famine.
Kiraitu Murungi jokingly talked about raping a willing woman and later regretted his words.
Both Githae and Murungi didn’t insult anyone but their pans turned them into temperory villains.
Harsh statements such as William Ole Ntimama’s infamous “Lie low like envelope”, or “Remove Madoadoa” by Rift-Valley leaders have triggered ethnic tensions and real violence against targeted communities with dire consequences.
One can start understanding the apprehension of the NCIC but this needn’t lead to interfering with freedom of speech when we have laws to deal with such felonies.
In my view, the commission is holding a double-edged sword because on one hand it cannot fetter nor deny citizens the Bill of Rights nor can it be a bystander as the same is desecrated.
In this regard, the best option for the KNCIC is to operate within the constitution and legal ambit or better still issue advisory or caution on the same.
The commission cannot and shouldn’t be seen to perform selective justice by choosing the election period to suddenly realise certain words and phrases are anathema.
Simply, the commission should call out any citizen or politician who breaks the law as covered in its mandate and have such people arrested and prosecuted accordingly.
“This leader is politically impotent”. The word ‘impotent’ in this sentence can subjectively be misunderstood in context to mean I have said someone is barren, which is an insult (defamation).
Kaunda wa Muchunku
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