National Cohesion and Integration Commission (NCIC) Commissioner Jerusah Mwaathime has clarified the legal definition of hate speech in Kenya, saying the offence is governed by the NCIC Act and prosecuted as a criminal offence when it meets the required legal threshold.
Speaking during an interview on Monday, Mwaathime said hate speech is interpreted differently across the world, but in Kenya, the law specifically addresses communication intended to incite ethnic or political hostility.
She explained that Section 13 of the NCIC Act criminalises statements or publications designed to insult, promote hatred or incite violence against particular communities or groups.
“Hate speech can be committed by an individual, through published material or even through the production or direction of a play or programme if the intention is to stir hatred or hostility,” she said.
Different forms of hate speech
According to Mwaathime, hate speech is not limited to spoken remarks but may also arise through newspapers, digital publications, performances or other forms of communication where the intention is to promote discrimination or hostility.
She noted that investigators focus on the context, content and intent behind a statement before determining whether it amounts to a criminal offence.
NCIC rejects claims of selective enforcement
The commissioner also responded to criticism that the commission applies the law unevenly depending on political affiliation.
She said the current team of commissioners, which assumed office about two months ago, is committed to enforcing the law fairly regardless of whether an individual is associated with the government or the opposition.
Mwaathime pointed to recent investigations involving politicians from different political camps, saying anyone found to have violated provisions on hate speech or ethnic incitement would face the same legal process.
She emphasised that criminal investigations require sufficient evidence before prosecution can begin.
Why viral videos are not enough
Mwaathime said the commission cannot rely solely on video clips circulating on social media, even when they attract widespread public attention.
Instead, investigators first establish the authenticity of the footage before seeking expert transcription, translation and interpretation through the Communications Authority.
Additional evidence is then collected before case files are submitted to the Office of the Director of Public Prosecutions (ODPP) for review and possible prosecution.
She explained that hate speech cases must satisfy the criminal standard of proof beyond reasonable doubt, making thorough investigations essential before charges can be filed.
Multi-agency effort ahead of 2027 polls
The clarification comes as government agencies intensify efforts to curb hate speech and election-related violence ahead of the 2027 General Election.
On August 3, the NCIC joined the Directorate of Criminal Investigations (DCI), the Independent Electoral and Boundaries Commission (IEBC) and the Office of the Registrar of Political Parties in launching a multi-agency committee to monitor hate speech, ethnic incitement and other offences linked to the electoral process.
NCIC Chairperson Kepha Omae has maintained that hate speech is not protected under the constitutional right to freedom of expression, while DCI Director Mohamed Amin has cautioned political leaders against making inflammatory remarks that could threaten national cohesion as the country prepares for the next election.
