(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 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.
The fallout from the 2017 presidential election petition is spreading and, not to be outdone in the incendiary speech department, it is reported in certain quarters that the indefatigable Moses Kuria has come out with his guns blazing. In an eighteen-minute diatribe, it is alleged that he has threatened not just Raila Odinga, Chief Justice Maraga or the three Judges of the Supreme Court who joined the Chief Justice in invalidating the election of Uhuru Kenyatta but that, in his arithmetic estimation, there are about two hundred thousand thousand voters in Kiambu who did not vote for Mr Kenyatta that he will lead a "manhunt" to uncover. If true, Mr Kuria may satisfy the provisions of the first half of subsection (1) (a), "A person who (a) uses threatening, abusive or insulting words or behaviour, or displays any written material...".
We can debate about coded language until the cows come home, regardless of whether or not Mr Kuria designated Uhuru Kenyatta the "king" of the Kikuyu, Mr Kenyatta is not a king. And while Mr Odinga is a Luo, he is not the Luo. In no way can insults and abusive language directed at Mr Odinga be considered to be language that is intended to "stir up ethnic hatred" where " ethnic hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins". Mr Odinga is not "a group of persons" and neither is Mr Kenyatta.
Mr Kuria has a beautiful relationship with the National Cohesion and Integration Commission, NCIC: he makes incendiary speeches that are usually condemned as targetting, primarily, the Luo. The NCIC "investigates" and asks the Director of Public Prosecutions to charge Mr Kuria in court under the National Cohesion and Integration Act. In the four years Mr Kuria has been winding up Luos, he has never been successfully prosecuted by the NCIC/DPP; instead, he has raised his profile among his ardent constituents as the president's pit bull, unafraid of any member of the Opposition and willing to say anything in defence of the president. Without the NCIC, Mr Kuria would be just another ho-hum Kiambu politician, a gauche parvenu with the delicate legislative touch of a sledgehammer for which political achievement is measured in the suction grip needed by his lips when sucking up.
Social media amplifies Mr Kuria's profile where his every incendiary utterance is "analysed" and discussed on endless forums and timelines. Those who loath him are united in their conviction that Mr Kuria routinely engages in "hate speech" and they actively ignore the infirmities in their core argument or remember that he has never been successfully prosecuted before any court for hate speech.
Mr Kuria may or may not hate Mr Odinga and Luo peoples. It is possible, though, that Mr Kuria loves political power more than anything else in the world and so long as what he says keeps Mr Odinga from threatening his access to that power, Mr Kuria will engage in the vilest speech to keep it so. Every time we freak out of his words and engage in never-ending arguments as to whether he "engaged in hate speech", Mr Kuria has succeeded: we are distracted from all the other things the government that he is part of has engaged in, like the unrelenting war against our children that is being waged by boarding-schools-turned-death-traps.