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| Tsomnyazi Wa Nganga |
Moses Kuria is betrayed by the subsequent comments on his thread. He used the phrase, "kill them all' In response to a comment by another person which had claimed that Luos and Somali were responsible for the blasts and that they were being controlled in Boston.
Do his words meet the legal threshold for hate speech crime?
According to Sec 13 and 62 of NCI Act , there is a legal threshold which must be met in prosecuting hate speech
1. The wrong doer or actor. This is the person committing the offense
2.Offending Act or Utterances- Spoken or written must be present. In this case, written word is the offending act on his post and his subsequent comment.
3 Character of utterances - Existence of spoken or written words that is threatening or abusive. 'Kill' in this case meets this requirement.
4. Intent or likelihood- This is judged from context, circumstance, environment and audience. eg What was his intention? Was it to stir up hatred?From the context of the whole thread, yes, hate exists and was stirred up!!
5. Anticipated or envisioned impact or danger. He might have meant terrorists but are his words dangerous and likely to cause ethnic hate after directing his response to Luos and Somalis? This is clearly envisioned in the thread.
This is the threshold required for an offense to be termed as ethnic hate crime. Moses Kuria's utterance also contravene Art 33(2)c and d.
My advice: Get a lawyer, unless LSK shows you mercy.
NCI Act 2008
Art13. 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
play;
(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 national origins
(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
play;
(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 national origins
Art 62. Offence of ethnic or racial contempt
(1) Any person who utters words intended to incite feelings of contempt,
hatred, hostility, violence or discrimination against any person, group or
community on the basis of ethnicity or race, commits an offence and shall be
liable on conviction to a fine not exceeding one million shillings, or to
imprisonment for a term not exceeding five years, orboth.
(1) Any person who utters words intended to incite feelings of contempt,
hatred, hostility, violence or discrimination against any person, group or
community on the basis of ethnicity or race, commits an offence and shall be
liable on conviction to a fine not exceeding one million shillings, or to
imprisonment for a term not exceeding five years, orboth.