THE RIGHT TO INSULT AND ITS LETHALITY IN FIGHTING A DICTATORSHIP IN EAST AFRICA

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]Top of FoBottom of Form

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]Top of FoBottom of Form 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.Top of FormBottom of Form

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.