Case Explained: Why offense shouldn’t be a crime – Legal Perspective

Victor Bwire/HANDOUT

The right to insult—or speech that merely makes some 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 already enough focus, away from insults and coarse language used in political rallies, places of worship, and tribal meetings, on policing the content of digital platforms or criminalizing speech online.

We should resist taking shortcuts by creating laws to handle the threats or opportunities presented by digital platforms, because lawmaking will never catch up with human creativity and innovation.

Studies show that digital spaces do pose genuine risks to nations, including information manipulation, disinformation, recruitment into violent extremism, radicalization, and the erosion of media credibility and public trust—which, in turn, affect freedom of expression and national security.

What societies need more urgently to deal with this infodemic is robust media and digital literacy, introduced both formally and informally in educational institutions.

Africans are highly oral societies, and insults are part of our cultural and linguistic dynamics. Attend traditional practices—market days, marriages, funerals, naming ceremonies, beer-drinking sessions, traditional songs—and you will see that playful or critical insults are woven into our social fabric.

Rather than legislating on every form of expression—especially when so many laws already exist but are poorly enforced—we should invest in interventions that help societies embrace technology, innovation, and creativity.

Listen to talk shows on the radio, and you will appreciate the central role of open, even provocative, speech in public discourse.

Under international law, speech is regulated primarily through 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.

Experts on freedom of expression have consistently noted that speech intentionally inciting genocide or advocating discrimination must be criminalized; speech inciting violence may also be restricted.

But speech that is merely disturbing, shocking, or offensive should not constitute a crime.

In Kenya, with its vibrant online community and a youthful population increasingly engaged in governance and public-interest issues, attempting to police insults or limit information sharing on digital platforms would be costly and ineffective.

A far more productive investment is in digital and media literacy, integrated into the school curriculum to foster responsible use and consumption of media content.

It is disheartening that journalists and content creators commenting on matters of public interest—through fair comment or factual reporting—continue to face harassment.

In 2010, the African Commission on Human and Peoples’ Rights adopted a resolution calling for the abolition of criminal defamation laws. Bodies such as the Media Council of Kenya’s Complaints Commission have been established largely to decriminalize press offences.

There are valuable lessons—both human rights–based and cost-based—demonstrating why criminal defamation and related insult laws are harmful.

Of course, freedom of expression is not unlimited. Many laws in Kenya allow restrictions for national security, public health, or incitement to hate speech. Protection of individual reputations, however, is not among the exemptions.

Even the Data Protection Act grants journalists exemptions when reporting on matters of public interest. Fair comment, truth, and journalistic privileges—including reporting from courts or parliamentary proceedings—are protected.

Criminal defamation and related “insult” laws have been widely recognized as some of the most severe obstacles to an independent press and the realization of freedom of expression across Africa.

In 2007, media practitioners and support groups meeting in Cape Town drafted the Declaration of Table Mountain, calling on governments to decriminalize criminal defamation as a key step toward advancing free press and freedom of expression.

A speech that merely insults, annoys, or offends should not trigger legal action. Societies that seek to stifle such speech under the guise of “protection” risk weakening democracy, restricting civic participation, and stunting the creative and critical capacities of their citizens.

The right to insult is, and must remain, a legitimate part of public discourse.