By Victor Bwire
The right to insult, or insulting speech, which merely makes a few people uncomfortable or annoyed, is not a criminal offence and should not be targeted for limitation in an effort to “clean” the information space. There is far more, beyond insults and coarse speech often heard in political rallies, places of worship, or tribal meetings, that should be the focus of criminalisation or calls for stringent content moderation on digital platforms.
We should not take shortcuts by rushing to enact laws to address every perceived problem in digital spaces. Instead, laws should focus on addressing genuine threats and opportunities presented by digital platforms. Lawmaking will never fully catch up with innovation and human creativity.
Studies show that digital spaces pose real threats to nations, including information manipulation, disinformation, recruitment into violent extremism, radicalisation, and the erosion of media credibility and public trust, which in turn undermines freedom of expression and national security. What is urgently needed to address the current infodemic is media, information, and digital literacy. This should be complemented by institutionalised approaches, including integrating such literacy into both formal and informal education systems.
African societies are highly oral, and insults form part of our cultural expression and rich language dynamics. When one attends traditional practices such as market days, cultural events, marriages, funerals, weddings, beer-drinking sessions, naming ceremonies, or traditional songs, it becomes evident that insults are part of social interaction. Rather than legislating every aspect of speech, we should invest in interventions that help societies embrace technology, innovation, and creativity, especially given that many existing laws are rarely implemented.
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Under international law, speech is primarily regulated by three treaties: the International Covenant on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, and the Convention on the Prevention and Punishment of the Crime of Genocide.
Freedom of expression experts note that speech which intentionally incites genocide or advocates discrimination must be criminalised, and speech that incites violence may be criminalised. However, speech that is merely disturbing, shocking, or offensive should not constitute a crime.
Kenya has a vibrant online community and an active digital space, supported by a large, youthful population increasingly engaged in governance and public-interest issues. Attempting to control such a population or heavily restrict information sharing in digital spaces would be extremely costly. It would be more effective to invest national resources in digital and media literacy, particularly through the school curriculum, to promote responsible use and consumption of media content.
It is disheartening that journalists and content creators commenting on matters of public interest, whether through fair comment or truth, continue to face harassment by security agencies through criminal defamation or “insult” charges.
In 2010, the African Commission on Human and Peoples’ Rights adopted a resolution calling for the abolition of criminal defamation laws. Institutions such as the Media Council of Kenya’s Complaints Commission were established to decriminalise press-related offences.
There is a clear human-rights-based and cost-benefit lesson in the decriminalisation of defamation and insult laws. Kenyan courts have declared criminal defamation and certain sections of the Computer Misuse and Cybercrimes Act unconstitutional for violating freedom of expression and press freedom, although some decisions have been appealed and overturned.
While freedom of expression is not absolute, as recognised globally, the permitted limitations generally relate to national security, public health, and incitement to hatred or violence. Protection of individual reputation is not among these exemptions, and even under the Data Protection Act, journalists are granted exemptions when reporting on matters of public interest, including fair comment, truth, and parliamentary or court reporting privileges.
Criminal defamation and related insult laws remain among the most significant obstacles to independent media and the realisation of freedom of expression and access to information in Kenya and across Africa. In 2007, media practitioners and freedom-of-expression advocates meeting in Cape Town adopted the Declaration of Table Mountain, calling on governments to decriminalise defamation as a key step toward advancing press freedom in Africa.
Ultimately, speech that merely insults, annoys, or offends should not be met with legal action.
Mr Victor Bwire is the Director of Media Training and Development at the Media Council of Kenya.
