Tuesday, May 30, 2017

The good Kenyan

Something @keguro_ has said gives me pause: can you use constitutional petitions strategically to change how your fellowman is treated? Perhaps you can.

Article 27 of the Constitution provides at clause (4) declares,
The State shall not discriminate directly or indirectly against any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
And at clause (5), it declares,
A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).
I believe, as I hope @keguro_ does, that hate speech, not just that which foments ethnic hatred but hate speech towards any person, is an act of discrimination and that it is, therefore, prohibited by Article 27(4) and (5). It should, therefore, be stopped or prevented by the State as part of the grand constitutional bargain we made with one another when we agreed to grant authority to the institutions of the Government to use specific measures to keep us safe -- and to protect our constitutional rights or fundamental freedoms.

However, if the State fails to do so, we have other constitutional tools available to us including Article 22 which provides at clause (1) that,
Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
Okiya Omtata has already shown us what can be achieved by dogged litigatory persistence in his jihad against misgovernance and corruption. We can challenge the hate speech of both State and non-state actors against women, Muslims, gays, the poor -- all the "others" that are routinely the targets of State-sanctioned and privately broadcast hate speech -- with the constitutional tools that Mr Omtata has so ably exploited in the recent past. By even contemplating such a thing, perhaps, we have the opportunity to re-think how and what we say when we define who a "good Kenyan" is.

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