Periodically “hate speech” gets a good deal of publicity, especially when politicians are involved. But what is “hate speech”, and—whatever it is—why is it a bad thing? How did it get into our law?

Most of us would probably think that most of what deserves the label “hate speech” is not a good thing. But would we all agree on what hate speech” is? And does it necessarily follow that something called “hate speech” should be against the law? We should, of course, recognise the damage that expressions of hostility and worse towards members of other groups and communities have done in the recent and more distant past.

The earliest use of the phrase in Kenyan law seems to be from 2009, just a year before the new Constitution. And that new Constitution is the most important law that uses the phrase.

You may find people suggesting that the Constitution outlaws hate speech. It does not.

The constitution provides everyone with a shield against having their rights trampled on, by government or by others. Government can only restrict those rights by law if that law is for a good reason and even if there is that the method used by government is reasonable considering the importance of the right and the importance of the purpose to be achieved by limiting the right. But in a very few situations the constitution’s shield does not apply at all. One of those situations comes under freedom of expression.

Quite a lot of Kenya’s Constitution was inspired by, even copied from, the South African Constitution. This is no bad thing, because that Constitution was new, and carefully negotiated and carefully written. And it was designed to mark, and guarantee, a decisive and final move away from an era of intolerance and injustice.

The South African Constitution says that anyone who commits “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” does not have the constitutional freedom of expression shield. The real heart of the matter is inciting people to harm others because those others are of race, ethnicity, gender or religion. South African courts have commented that these provisions are about what is often called “hate speech”. But their Constitution does not use the phrase “hate speech” at all.

Our Constitution may be better because it provides no freedom of expression shield for advocating hatred on the basis of disability, health status (like being HIV positive), place of origin or any other personal factor. It is arguably worse because activities that are unprotected by freedom of expression are both very wide and very vague.

The original of these provisions is the International Covenant on Civil and Political Rights, which says countries should make “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” a crime. The connection with the Second World War and the genocide of the Jews by the

Nazis is obvious. It is unfortunate that the phrase “advocacy of hatred” was used and has been perpetuated. What does it mean? Why was it not enough to refer simply to inciting discrimination, hostility or violence on the basis of nationality, race or religion? Hate is an emotion: does it make sense to base a constitutional provision on it?

It’s a pity that Constitution drafters don’t think a little more carefully about the language they use. This includes the drafters of the South Africa Constitution, and all the bodies that used similar language in preparing the various drafts of a Constitution for Kenya. The very first Kenyan draft (CKRC 2002) was quite similar to the South African language, but not limited to race, ethnicity, gender or religion. And advocacy of hatred was unprotected if it involved “vilification” of others. But the Bomas draft was less precise: advocating hatred was not protected by the constitution, provided it was based on any personal characteristic of the people attacked. No need to show the advocacy was arguing for discrimination, violence or hostility.

The Committee of Experts added, in their very first draft, “hate speech” and this has remained. What does it contribute? The Constitution removes the shield from specific behaviour that is often described as “hate speech”, but adds “and hate speech”. A lawyer would say that “hate speech” was intended to mean something different from the provision about advocacy of hatred— but what could that be?

We now have various laws about hate speech. The Elections Act includes a Code of Practice saying parties and candidates must avoid its use. The Media Council Act’s Code of Practice for Journalism has a clause saying it is not allowed to quote anyone making “derogatory remarks based on ethnicity, race, creed, colour and sex” and racist or negative ethnic terms are to be avoided. Can we be sure what is meant by “racist or negative ethnic terms”? And should it really be a crime to report the racist or sexist remarks of Donald Trump?

This is a very serious matter because business can be fined up to KShs500,000 and an individual journalist up to KShs100,000 for a breach of the Code.

Again, the National Cohesion and Integration Act provides that it is an offence for anyone to publish, perform or show anything that is “threatening, abusive or insulting” if they intend to stir up ethnic hatred— or even if it is likely that ethnic hatred would be stirred up, whether they intended it or not. And by “ethnic hatred” the Act means based on colour, race or nationality but not, oddly, on religion. And is it right for a person to be found guilty of a crime for being stupid and unthinking in their abuse, or only if they intended to stir up others? A difficult question. Rather oddly, the Act creates another, more limited offence of uttering 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”.

Vague laws are unconstitutional, and should not be protected just because they are intended to stop something called “hate speech”. It is important that any law, especially creating a crime, should be carefully and clearly drafted so that people know what they cannot do. Vague law also puts too much power into the hands of the police, the DPP, and the judges, and it can make it too easy to victimise minorities with unpopular views.

It is tempting to think “That is a nasty thing to say—it should be against the law.” But freedom of speech, even to say nasty things, is important. Justice Majanja said, “Artistic expression is not merely intended to gratify the soul. It also stirs our conscience so that we can reflect on the difficult questions of the day.” The same is true of other forms of expression.

Three international experts on freedom of expression, in 2001, proposed several limits on hate speech laws. They included: no-one should be penalised for statements that are true, no-one should be penalised for hate speech unless they intended to incite discrimination, hostility or violence, journalists should be given some leeway to decide the best way to communicate to the public about racism and intolerance, and punishments should not be excessive. Lawmakers do not have to take full advantage of the possibilities the Constitution opens up to criminalise expression, and when making law on this subject they should think carefully about whether to ensure that the law respects these limits.

Inciting violence, and discrimination, should be against the law. Probably inciting hostility also —especially because of the damaging effects of ethnicity on our democracy. But it is important not to limit freedom of speech—the exchange of ideas, the debate on policies, even if vigorously, even rudely, expressed—more than strictly necessary.