By Munyeri Levi[1]
Abstract
One of the most important rights in
terms of sacredness and consequence is the freedom of expression. It is a
mother freedom that sets the stage for many other rights desired by mankind.
Without the guarantee of fearless expression, expansion of human rights would
have been impossible or curtailed to a great extent.
Aside from testate succession, the
right of expression is probably the only other freedom that may be effectively
utilized by one way past this life. Centuries after their demise, scholars
continue to influence the lives of the living through their teachings and
writings. Religious icons that died millennia ago are perpetually commanding
the daily lives of billions of their living followers through their creeds.
It is therefore an expansive freedom
which encompasses a concoction of distinct liberties that are essential to the
latitude of free humans to speak their minds and disseminate ideologies. The
supremacy of the freedom of expression and its efficiency in triggering political
change has rendered it prone to suppression by the state.
In this Article, the writer will post
that integral to freedom of expression is the right to insult.[2]
This article delves deep into the sensitive waters of freedom of offensive
expression and purposes to cement unpleasant and annoying speech as an
inseparable part of constitutionally protected freedom of expression.
To establish the province of the right to
insult and its boundaries, the article raises arguments, both legal and
logical, in support of expansion of the freedom, at all times stating the
position of the law as it is.
Constitutional
Protection of the Freedom of Expression
Freedom of expression (also known as
free speech) is preserved in the Bill of Rights as a fundamental right and
freedom. It includes the freedom to seek, receive or impart information or
ideas; freedom of artistic creativity; and academic and scientific freedom.[3]
Legitimate Limitations of Free
Speech
The
Constitution permits justifiable limitations of freedom of expression. In this
regard, the Constitution categorically states circumstances that may prompt its
limitation. Enjoyment of free speech does not extend to propaganda for war; incitement
to violence and hate speech.[4]
It further stipulates that in the exercise of this freedom, every person shall
respect the rights and reputation of others.[5]
In enjoyment of the right to insult,
one must tread with legal caution to ensure that the insults do not spill over
to the unsettled definitions of propaganda for war, incitement to violence, hate
speech or defamation. A general advocacy for a political revolution to topple
despots is well protected under free speech.
Freedom
of the Media as an Extension of free speech
Akin to free speech is freedom of the
media.[6]
It is a vital vehicle that allows the enjoyment of expression and facilitates
diffusion of information to a larger audience. Media in the Constitution is defined to
include the print media, electronic media and other emerging media types like
social media. Enjoyment of the right to a free and independent media applies regardless
of the platform used.
Under this freedom, the state is
forbidden from penalizing a person for any opinion, view or the content of any
broadcast, publication or dissemination save for if it qualifies as a
constitutional limitation on freedom of expression. This right licenses free
men and women to disseminate information on social media without any form of
censorship or sanction by the State.
The
Realm of the Right to Insult
In this age of political correctness,
freedom of expression is under consistent attack from old but mutating foes;
from decency to hate speech to defamation to ‘hurting feelings’. To side step such forces, speech ingenuity
has to be invoked to unmask societal deceit and blast political scoundrels.
From the East African region, two scholars have emerged as bastions of the
right to insult: Dr. Miguna Miguna of Kenya and Dr. Stella Nyanzi of Uganda. They
have consistently invoked insults to boldly and loudly express their loath for
repression by the political class.
Miguna:
the Insult-Spitting Lawyer and Political Activist
Dr. Miguna Miguna is a Kenyan-Canadian
dual citizen who suffered exile in the 1980s for his political activities
during the dark ages of iron rule in Kenya under president Moi[7].
He came back in Kenya in 2007 as a political advisor of the then Prime
Minister, Raila Odinga. It did not take
long before Miguna’s long-standing legacy of confronting despots precipitated
to a boisterous resistance against his illegal deportation at Jomo Kenyatta
Airport[8].
In a stunning David-Goliath exhibition, Miguna invoked insults and stamina to
defeat the invincible state in its endeavor to deport him from his motherland.
In full glare of media, he fought an army of policemen of an unknown infantry.
Eventually the police gave in and temporarily suspended their mission to the
embarrassment of their contemptuous bosses[9].
The
case of Stella Nyanzi – A renown Ugandan Scholar
Dr. Stella Nyanzi is a renowned
academic and an expelled research fellow at Makerere University. She is also an
authoritative gender activist in her country and beyond.[10]
She resurrected an almost extinct weapon of non-violent resistance: stripping
naked. In the University corridors of Makerere University, after a male don
actualized her irregular eviction from the University by locking her office;
Nyanzi reacted by tearing down her clothes to express her displeasure.[11]
As if stripping was not enough, she took it a notch higher by taking a naked
selfie of her bare chest and posting it on her Facebook account to supplement
the online insults that she directed to her tormentors. Ignominy amongst women;
the men lewdly outraged. Expectedly, the oppressive state deemed it timely to
rant ambiguous outdated penal laws relating to pornography and charged her in
Court.
Indictment was far from insufficient to
deter the brave scholar from skillfully applying insults as a ruthless tool
against oppression. Her indictment and incarceration for calling tyrant
Museveni ‘a pair of buttocks’
attracted international headlines.[12]
Since then, she has consistently and crassly hailed torrents of insults on the
ruler of Uganda. Perhaps alive to her inability to violently resist the regime,
she broadcasts to the world the grossest obscenities heard from a respected
public figure in Africa via social media. In this humble way, she has merited a
seat in the pavilion of finest of defenders of political free speech of our
time. Dr. Stella Nyanzi was decorated with the PEN International Award for
Freedom of Expression.[13]
Defamation:
An Archaic Impediment to Free Speech
Defamation is rudimentarily defined as
any publication or speech that is injurious to the reputation of others.[14]
In the Kenyan jurisdiction, defaming someone may attract civil liability. Civil
defamation claims are commonly advanced by corrupt politicians against media
houses that have published damaging stories against them, often those that
expose their corrupt lifestyles and threaten their looting careers.[15]
Such suits are a dreadful threat to media freedom as they expose media houses
and publishers to punitive damages which are usually awarded in millions of
shillings.[16] Mitigatory
to this lustful predator of free speech and media freedom is the absolute defence
of justification: if you can prove that the alleged defamatory post is truthful,
you are not liable for defamation.[17]
Dr. Miguna’s consistent Twitter and
Facebook rants sharply attacking the person of Raila Odinga cannot be
interpreted as defamatory. On the surface, the intention to mock is apparent
and no reasonable person can rely on them to hold Raila Odinga in low esteem. In
this litigious nation, the reluctance of Raila and his aides to institute defamation
suits against Miguna points at one logical conclusion: existence of compelling
defences against defamation in favour of Miguna.
Good news: the law absolves any
liability from defaming the dead. There is no reputation in a dead man capable
of being defamed, regardless of how reputable he or she was in life.[18]
Whereas as per our African values we do not speak ill of the dead, the natural
act of death does not exempt a person from criticism and insults. In fact, your
transgressions should be critically analyzed and highlighted upon your demise. Evil
and Corrupt dead men and women should be insulted in the most derogatory lingua
until the end of times as a stern warning to the living who purpose to live a
life as devastating as theirs.
Insults
as a Literary Skill
Literature is a compulsory discipline
in the Kenyan Curriculum, that being said it is baffling that Kenyans have never
consumed insults as a polished literary skill. Instead, they treat it as crass
and denounce its users as indecent. What a mass failure of literacy and
schooling! Just like proverbs and parables, insults are a vital literary tool
for the refined and well schooled.
Since the explosive unmasking of Raila
Odinga in his political memoir-expose Peeling
Back the Mask, Miguna invokes literature to unleash a fierce criticism of
the enigma of the Kenyan political class.[19]
As a man who is revered and dreaded by the masses in equal measure, Raila has
probably experienced the bulk of Miguna’s insults more than anyone else. In the
book, Miguna eloquently narrates the intrigues around the 2007 election that
was sundered in massive rigging that conceived the worst violence in
post-independence Kenya. Beyond Raila’s appetite for primitive wealth, Miguna
narrates the extent he could go to clinch power. His dictatorial tendencies
within his party are vividly inked in the book using the most spiteful of
lingua achievable.
The
Society Should Appreciate Insults and its Invokers
For their spitting and scathing attacks
against Raila and Museveni, Miguna and Nyanzi have put their careers and
livelihoods on the line. Every day, they risk it all to uphold their fidelity
to democracy through free speech. Here is a man and woman who have no form of
security and no bodyguard at their side.
For them, the risk of death is eminent, yet, negligible when the duty to
insult a regime out of power calls. A lucid observant of these exemplary
activists must appreciate their willingness to suffer consequential detriment
to their person and careers for the sake of democracy.
The
‘Duty’ to Welcome Insults
It is the constitutional duty of the state
and all citizens to facilitate the enjoyment of rights by individuals to the
highest level achievable.[20] The act of a public figure blocking a
follower on Twitter for reasons that the follower challenges his assertions has
been held to be a violation of free speech. An American Court held that
President Trump’s practice of blocking critics on his Twitter Account violates
the First Amendment of the American Constitution on free speech.[21]
It is despicable that the social media
insulter-in-chief has gained notoriety for blocking critics and insulters on
twitter. Any justification by Miguna that he is not a public figure hence under
no obligation to retain his insulters as followers is devoid of merit. It is
laughable for one to love to insult and abhor being insulted at the same time.
Curtailing the enjoyment of free speech
by others through Twitter blockage shall remain a dent in their legal and
activist credentials. The gentleman should be reminded that the right to insult
is not a privilege for the intelligent only; fools are equally constitutionally
entitled to it.
Effectiveness
of Insults in Fighting Dictatorship
To the two masters of insults and
obscenity: keep it up! They should never board the bandwagon of political boot-lickers
who welcome ‘envelopes’. We may not have guns to fight oppressive governments;
neither do we have the numerical strength nor monetary muscle. For this
powerful form of non-violent resistance, all you need is a nimble, fearless
mind in control of an ever-open, loud mouth. Although it is difficult to quantify
the impact of this form of resistance as practiced by the duo, its quality is
self-evident by the ruthlessness of the rulers against them.
As Tanzania sinks deeper into
repression under Magufuli, let us hope that an anointing will befall one of her
citizens and elevate them to the revolutionary ranks of Miguna and Nyanzi.[22]
The world needs more people to contribute to the expiry of ignoramus-socked
dictators of this region through the right to insult.
Certainly, the book – Peeling Back The Mask is partially to
blame for the slim loss that Raila suffered in the 2007 presidential elections
thus substantiating the effectiveness of insults as a tool of spreading political
consciousness. Needless to say, every thinking son and daughter of the African
soil should look up to Nyanzi -Miguna as ideal role models of character and wit.
The
Gods Are Not Exempt From Insults
The right to insult is not limited to
mocking mortals; the gods are no exemption. In the last decade, freedom of
expression has won a pivotal triumph through the decriminalization of offences
against religion around the world, especially in Europe.[23]Blasphemy
laws are medieval barriers to enjoyment of the right to mock and insult
religion. Religions have long included protective clauses in their scriptures
that pronounce doom upon whoever questions the credibility of their doctrines.
A clear example is the abolition of graphic depictions of Prophet Mohamed in
Islam.[24]
The colonial Kenyan penal code still
criminalizes blasphemy.[25]
Although it is hardly invoked, its presence in our laws remains a black spot of
free speech. The blasphemy laws are likely to fail the constitutional test if
their constitutionality is challenged in the High Court.
Ordinary mortals should be humbled by
the fact that not even immortals and gods are exempted from suffering from the
right to insult. They should eat their humble pie of insults when it thrown
their way, and not suffer from ingestion.
Conclusion
The unenlightened masses have branded
Miguna and Nyanzi as inconsequential perverts. Some respectable and studious
citizens have described Miguna as an unruly busybody doomed for insanity.
Across the border, Nyanzi is the portrait of indecency and lunacy. In fact,
Museveni’s regime subjected her to a forceful psychiatrist examination targeted
at saving the taxpayer the financial burden of trying a lunatic in Court. Miguna endured torture, ridicule and all
human rights violations imaginable. Finally, he was injected with a cocktail of
chemicals and unconsciously bundled out of the country like a luggage.
These are the life-threatening sacrifices
that enlightened brains in a society must make for their less intelligent
brothers and sister to live with a semblance of human dignity. It is
regrettable that so alien is the basic literacy technique of insults in this
part of the world that learned men and foolish masses comingle to declare its
practitioners insane.
[1] Levi Munyeri is a Constitutional Lawyer and an Advocate of the High Court of Kenya. For queries and legal advice, contact the author via levimunyeri890@gmail.com
[2] The right to ‘offend, shock or disturb,’ or the importance of protecting unpleasant speech (14th August 2017) Available at https://medium.com/berkman-klein-center/the-right-to-offend-shock-or-disturb-or-the-importance-of-protecting-unpleasant-speech-c57bc0672a30
[3] Article 33, Constitution of Kenya, 2010
[4] Article 33 (2), Constitution of Kenya, 2010
[5] Article 33(3), Constitution of Kenya, 2010
[6] Article 34, Constitution of Kenya, 2010.
[7] https://mshale.com/2018/03/23/miguna-miguna-raila-odinga-prisoner/ Accessed on 17th April, 2020
[8] Ibid
[9] Ibid
[10]Of Stella Nyanzi's Rebel Speech and Politics.' The Observer, (13th March 2017) . Available at https://observer.ug/viewpoint/51729-of-stella-nyanzi-s-rebel-speech-and-politics
[11] Daily Monitor (18th April 2016) Dr. Stella Nyanzi undresses to reclaim her office. Available at https://www.monitor.co.ug/News/National/Dr-Stella-Nyanzi-undresses-to-reclaim-office/688334-3164404-x4haujz/index.html
[12] Bearak M, Washington Post (12th April 2017) The Professor who called her president a ‘pair of buttocks’ Now she is in a maximum security prison. Available at https://www.washingtonpost.com/news/worldviews/wp/2017/04/12/this-professor-called-her-president-a-pair-of-buttocks-now-shes-in-a-maximum-security-prison/
[13] Okayafrica (19th January 2020) Jailed Ugandan activist, Stella Nyanzi, wins PEN prize for freedom of expression. Available at https://www.okayafrica.com/jailed-ugandan-activist-stella-nyanzi-wins-2020-pen-prize-for-freedom-of-expression/
[14] Black’s Law Dictionary, 11th Edition.
[15] See Musikari Kombo v Royal Media Services Limited [2018] eKLR
[16] See Kipyator Nicholas Kiprono Biwott v Clays Limited & 5 others [2000] eKLR
[17] Section 14, Defamation Act, CAP 36 Laws of Kenya, Revised Edition 2012 [1972]
[18] Joseph G. Njoka & 5 others v Rose Mutitu Gachoki [2018] eKLR
[19] Miguna, M. (2012). Peeling back the mask: A quest for justice in Kenya. London: Gilgamesh.
[20] Article 24(1), Constitution of Kenya 2010.
[21] Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 1:17-cv-5205 (S.D.N.Y.), No. 18-1691 (2d Cir.). Available at https://knightcolumbia.org/cases/knight-institute-v-trump
[22] Democracy under assault – Tanzania’s Rogue President.(15th March 2018) Available at https://www.economist.com/middle-east-and-africa/2018/03/15/tanzanias-rogue-president
[23] Humanist UK, Denmark becomes the fifth European country to abolish ‘blasphemy’ laws since 2015 (2nd July 2017) Available at https://humanism.org.uk/2017/06/02/denmark-becomes-fifth-european-country-to-abolish-blasphemy-laws-since-2015/
[24] In January 2015, the Paris office of Charlie Hebdo, a French Satirical magazine, was attacked by terrorist who killed 12 of its staff. The motive of the attack was revage against the magazine’s satirical cartoons of Prophet Mohamed. See Rose, F. (2016). Tyranny of Silence. Washington: Cato Institute. Pg 282- 286.
[25] Sections 134 & 135, Penal Code, CAP 163 Laws of Kenya.
