State of the World's Minorities and Indigenous Peoples 2014 - Kenya

Kenya witnessed a number of major political and social events in 2013, all with important implications for the issues of hate speech and hate crimes in the nation. The year began in March 2013 with the first elections since the adoption of the 2010 Constitution. As a result of widespread hate speech and ethnic incitement during the previous election period in 2007, resulting in attacks and displacement for many minority and indigenous communities, there were major initiatives across the country to curb such behaviour in 2013. While the 2013 election was relatively peaceful, the September assault by al-Shabaab insurgents on the Westgate shopping mall in Nairobi resulted in numerous deaths and a backlash against the country's Somali minority.

Though violence and incitement are recurring problems for Kenya, endangering minority and indigenous communities and – at a broader level – national stability, the country has also developed a number of legal instruments that condemn and punish hate speech and hate crimes. Article 33(1) of the 2010 Constitution guarantees freedom of expression, but not when that expression constitutes incitement to violence, hate speech, or advocacy of hatred that (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination. Similarly, Cap. 36, Section 96 of Kenya's Penal Code prohibits incitement to violence, specifically words or acts that are calculated 'to bring death or physical injury to any person or to any class, community or body of persons; or to lead to the damage or destruction of any property'. Finally, Section 13(1) of the National Cohesion and Integration Act states that:

'a person who [uses speech or an act] which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behavior commits an offence if such a person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.'

The legislative framework has been used by minority groups to address what they viewed as harmful speech. The Kenyan NGO Muslims for Human Rights (MUHURI) brought a case of hate speech in 2012 against a politician who was accused of statements that could have incited violence between communities at the Coast; the case was ultimately dropped after the National Cohesion and Integrated Commission (NCIC) mediated and the speaker issued an apology. Another politician was also charged in 2012 with hate speech and suspended from his government post after calling Maasai thieves, stating that they were not welcome in the area, and encouraging their eviction and mass arrest. He ultimately apologized to the Maasai community after his remarks were widely condemned.

In advance of the 2013 elections, police and civilians were trained to monitor and record evidence of hate speech during campaigning, with a designated phone number established to report incidents. Despite being relatively peaceful, instances of hate speech were recorded by many organizations. The Umati project, established to monitor hate speech online during the election period, found that at least a quarter of the more than 5,600 online hate speech statements recorded were 'dangerous' because they contained 'a call to kill, to beat and/or to forcefully evict a particular group, or an individual because of their belonging to a particular group'. Although the project monitored hate speech targeting major ethnic groups (Arabs, Asians, Kalenjin, Kikuyu, Luhya, Luo, whites) and major religious groups (Christians, Hindus and Muslims), disaggregated data was not available. Moreover, data on hate speech against particularly vulnerable minority and indigenous groups in Kenya outside of the election period is not available. There are also ongoing challenges to translate these efforts into effective action against hate speech. The NCIC, for example, has been criticized for the small number of legal actions that have been launched so far against online perpetrators.

In May 2013, Kenya's Truth, Justice and Reconciliation Commission (TJRC) released its final report. The TJRC had a mandate to address historical marginalization of communities and land rights, as well as inter-ethnic conflict. In a positive development, the TJRC report contained an entire chapter on minorities, indigenous peoples and gross violations of human rights, as well as two chapters on ethnic conflicts. The TJRC discussed negative portrayals of minority communities including misrepresentations of the history of various communities in official documents, reference to communities in derogatory terms, and portrayals of indigenous peoples in particular as poor and backward. The TJRC also noted that colonial policies, such as ethnically defined territorial boundaries, 'magnified the differences between the various communities and regions, and stereotyped each community in a manner that would sow suspicion, hatred and the sense of otherness'. The TJRC highlighted the role of these representations not only in perpetuating the economic marginalization of some communities, but also in driving incidents of hate crime, such as the mutilation of genitalia of men from communities that do not practise circumcision.

In September 2013, the trial of Kenya's Deputy President, William Ruto, and his co-defendant Joshua arap Sang opened at the International Criminal Court. The case relates to the accused's role in the electoral violence in 2007-8. Specifically, Sang is accused of using his radio programme, which aired in the Kalenjin language, to incite violence against other ethnic communities perceived to be political opponents. The trial is ongoing.

Also in September 2013, al-Shabaab insurgents attacked the upscale Westgate shopping centre in Nairobi, killing more than 60 people. After the attack, the Somali and broader Muslim minority communities in Kenya called for tolerance and demanded that all Muslims should not be linked indiscriminately with al-Shabaab and violent incidents. The Kenyan-Somali community, which had been targeted in the past few years with threats to forcibly relocate thousands of urban refugees into camps in the far north of the country, expressed particular concerns about a backlash. Earlier in 2013, human rights groups reported that refugees were subjected to weeks of police abuses in advance of the planned relocation, including being called 'terrorists', though the government plan to move refugees to camps was ultimately stopped by the Kenyan courts. Indeed, in the wake of the Westgate attack, Kenyan Somalis reported being subjected to excessive security checks and verbal abuse from passers-by, such as being called 'al-Shabaab'. Police harassment of Somalis and Muslims intensified again after Westgate, with documented instances of police abuse in Mombasa including round-ups, beatings, and death threats against those suspected of having connections with extremism.

More violence and ethnic killings in the Tana River region that had started the previous year spilt over into 2013. Pokomo and Orma communities continued the massacres in bloody revenge attacks in January 2013, with hate speech and rumour-mongering deemed one of the causes.

Indigenous peoples' land rights continued to be a major concern in Kenya. In particular, evictions of hunter-gatherer communities including Ogiek and Sengwer – by private land grabbers and by the government – continued during the year. Both communities took legal action, with the Sengwer filing a case in a domestic court in Kenya seeking recognition of their rights to their traditional lands. The Ogiek had previously filed numerous legal cases in Kenyan courts and ultimately brought a communication to the African Commission on Human and Peoples' Rights, with the assistance of Minority Rights Group (MRG), in 2009. In 2013, the Ogiek case was referred to the African Court of Human and Peoples' Rights, and the Court issued interim measures demanding that the Kenyan government cease any activities that would transfer Ogiek lands to private individuals and that would cause further destruction of the Mau forest, the Ogiek's ancestral territory. The case is a major test for indigenous rights in the region, and hearings are expected to commence in 2014. The Endorois community continued to advocate for implementation of a 2010 decision of the African Commission on Human and Peoples' Rights that recommended that the government compensate them for their eviction from and loss of access to their ancestral lands. However, there had been no significant steps towards implementation by the government before the end of 2013.