When is hate speech not hate speech?
Kweli has been documenting, beautifully, the fraught project of Kenyan ethnicity: how, that is, some ethnic groups become Kenyan while others remain aslant, oblique, effaced, and abjected. Not quite, not right. The project of Kenyan ethnicity—the making of Kenya as 42 tribes—is also a subject-making process: it designates those who have access (unequal though it may be) to the law, those the law recognizes as bearing rights, those for whom the law can seek redress, those the law recognizes as legible and legitimate.
Following the PEV, hate speech was identified as “something” Kenyans needed to address. Thus it is that our spanking new, if attenuated, Constitution addresses the relationship between freedom of expression and hate speech:
1. Every person has the right to freedom of expression, which includes—
a. freedom to seek, receive, or impart information or ideas;
b. freedom of artistic creativity; and
c. academic freedom and freedom of scientific research.
2. The right to freedom of expression does not extend to—
a. propaganda for war;
b. incitement to violence;
c. hate speech; or
d. advocacy of hatred that—
i. constitutes ethnic incitement, vilification of others or incitement to cause harm.
All of this sounds very promising.
However, something peculiar has happened to the concept of hate speech as it has increasingly been divorced from the broader spectrum of freedom of expression and been more firmly welded to the narrower circuit of election cycles. I say welding, but it is really a cleaving: we are concerned with hate speech during election cycles.
This restricted domain becomes apparent in the Elections Act (2011), which reads:
6. All those bound by this Code shall, throughout an election period –
a. publicly and repeatedly condemn violence and intimidation and avoid the use of hate speech, language or any kind of action which may lead to intimidation and violence, whether to demonstrate party strength, gain any kind of advantage, or for any other reason.
Implicitly, hate speech has been defined as something carried out by politicians and predominantly during election cycles. A quick search on “hate speech” in the mainstream newspaper archives since 2010 confirms that hate speech has a restricted domain. Apart from the narrow scope of “the political,” narrowed, that is, in Kenyan discourse to the actions of “politicians,” hate speech does not seem legible.
If one attends to ongoing conversations on the dreadfully named “negative ethnicity,” one soon discovers that if hate speech has another domain, it is that of ethnicity. Hate speech is what happens between those groups recognized as bearers of Kenyan ethnicity—the sacred circle of the 42. In practice, not even that. Hate speech happens between those ethnic groups that designate themselves worthy of national leadership: we tremble when the Gikuyu and Luo call each other names and are deaf when, say, the Nubians are invoked.
The making-political/making ethnic of hate speech licenses its use in multiple other forums. Certainly, the newspapers demonstrate no qualms in printing reader comments that vilify women and gays and lesbians. But because these sentiments are not routed through the subject-legible project of Kenyan ethnicity, they fall outside the domain of hate speech, or at least it appears that way—lawyers, please correct me on this.
Here, I am trying to combine two points. First, the category of hate speech is used to demarcate those who can have a claim before the law, that is, those recognized as valid before the law, a law routed through the project of Kenyan ethnicity. Second, the ethnification of hate speech laws has had the consequence of distinguishing between those we deem capable of injury, that is, those we deem as human, and those we deem incapable of injury or otherwise deserving of injury.
As a consequence, many of the sentiments against Al Shabaab-Somalis in the newspapers, comments that are monitored, by the way, vilify Somalis and incite violence, but, given Somalis’ aslant position to the project of Kenyan ethnicity, those comments are not legible as hate speech.
I have been insisting on the slide between Al Shabaab and Somalis not only because it is happening all over Kenyan discourse, but also because I want to mark the making and unmaking ethnic of Somalis.
If I may detour and repeat myself.
In “Problematic Proximities” Sara Ahmed returns to the “stickiness” of words, arguing that the “mere proximity of words” and the repetition of that proximity makes association “essential”: “The stickiness of proximities congeals into an attribute, without an explicit act of attribution having to be made.” Moments of disavowal become “sticky” moments. When we say we are after Al Shabaab, not Somalis, and repeat that sentiment, as we have been doing, we bind the two ever more tightly, so that Somalis translates as Al Shabaab and vice versa.
But something else happens.
When we banish Somalis and only use Al Shabaab, we remove Somalis from proximity to the sacred circle of Kenyan ethnicity, away, that is, from whatever limited protections might be available within that circle. As I have tried to suggest, we license various kinds of hate speech in such a removal, to the extent that hate speech is understood as embedded within the project of Kenyan ethnicity.
I started by asking: when is hate speech not hate speech?
One might answer when those targeted no longer have the attributes of being recognizable as human or as deserving human rights. In Kenya, one is rendered human through the project of Kenyan ethnicity. In the slippage and slide and stickiness between Somalis and Al Shabaab, something ugly has been licensed.
*(There’s an argument I cannot make now about how the project of Kenyan ethnicity intersects with the project of Kenyan race to confer various forms of legibility and illegibility, various modes of belonging and unbelonging. Shailja Patel’s Migritude is invaluable on this.)