Language most often becomes an issue, in day-to-day life,
because of relationships of power and the abuse of such relationships
Legal protection against injury of a person’s reputation is a reasonable trans-cultural goal of the law. The question is how to accommodate freedom of the press against the law of defamation, whether civil or criminal. Reputation is covered in the Universal Declaration of Human Rights and International Covenant of Civil and Political Rights of 1966. Freedom of speech and press still defamation stands on the way as a civil offense.
Philosophers or scholars of language do admit that language has a lot to do with the culture, social psychology among many other related influences including the media products and services. We should not extract human beings from the society…because man is a social being. How we use the language shall be determined by the community or audience being addressed. The smaller the audience the easier the communication skills. The more diverse the audience is, the more public speakers get engaged in tussles with the quality of communication and the law.
But remember that communication is always a dialogue. One is sending signals to the other who is supposed to interpret such signals to get the meaning. The process is not easy since both the transmitter and the receiver have got different world views and many other influencing factors that usually cause misrepresentation of ideas. Putting any idea across is not an easy task. Many tend to struggle with words to use, symbols to use, and which metaphors and poetic signs that would make it easier for the receiver to decode the message. The failure of such techniques of decoding the language is what usually lead public speakers to defamatory statements.
Hate speech becomes a crime when it causes injuries and damages to a person. This is linked to the hate crime which is punishable by law. The Penal Code and Criminal Procedures are clear on this. For instance, if a speech made by one person makes the other person suffer injuries or even loss, then this is a hate crime. The hate means some well indicated dislike of a person. There are such cases pending in court and it would be a subjudice for me to discuss them on this open platform.
A number of things lead to hate speech but what is outstanding is social psychology. Some public speakers believe that the more they tear into another person’s personality the more they persuade the listeners. Saying that Mr. X is a liar, one thinks that his or her audience shall interpret it to mean that he is honest.
Public speaking is a challenge. Any speaker must prepare well and know his or her audience very well before uttering a word. But this is not easy since the audience is now unknown to the speaker as such messages get across through social media. The speaker in this case has no time nor any medium to justify his speech and explain to the audience what he really had in mind. This is what leads to misunderstanding, misquotation and mistakes in reporting. Even if the speech was properly recorded, the author usually tends to argue that he was not understood by the listeners.
This leads us to discuss about the intent. Did the speaker intend to harm the listener? Did the speaker have a malice aforethought? How should this be determined by law? The judicial process relies on procedures, technicalities and evidence of facts in determining defamatory cases. Lack of sufficient evidence to sustain the case is the recipe of failure on the part of the complainant. Literary, the complainant has the burden of proof using preponderance of evidence available. The defense shall always use such evidence to water down the argument of the complainant. The defense usually use, the role of a politician – to speak openly or give open speech as part of their mandate. Then they go on arguing that it is their duty to represent the people so they must speak openly and express their views freely. Some claim, they did not have any malicious intent against the listener of the claimant. But how does one draw a line between open speech and hate speech?
The claimant usually claims damages and injuries (of reputation) under the civil procedures, and if it wins, he claims compensation (defamation award) in tune of millions of money. Some of such claims include intentionally damaging one’s reputation in public, putting some one’s security in public jeopardy, and even causing damages such as losing a job or developing poor social relationships with other people. Again the claimant usually claims injuries to his or her own personality which can only be quantified by justice in tort. Such injury shall require redress and it is the court to ensure that the complainant is properly redressed and justice is done under the common law system. It is in this context that successful defamatory proceedings end up in big pecuniary obligations imposed on the defendant by the court.
The defendants, who in this case are usually politicians, shall use every mitigation measure such as exculpatory appeal to his or her community or political party in defense. Such use of the community to justify a politician tends to exploit the will of the people and to claim that he has the duty to represent the people in public (open speech). When can we say that the politician acted in his private capacity and when can we argue that he was speaking in his public capacity? Public speaking exposes one to various sorts of criticism by journalists and other politicians even if the constitution does not distinguish the law protecting the reputation of politicians and none politicians. The law is applied generally and even politicians have a right to have their reputation protected. To some extent, private individuals deserve more protection as compared to politicians whose reputation is open to public criticism.
As cases on defamation keep on dwindling in the corridors of justice, it is clear that defense lawyers are engaged in watering down the claims of the plaintiff by using such arguments as semantic problems, misunderstanding, open speech and not hate speech, failure to get the meaning, doctoring the message by using new technology, or misinterpretation of the law. Any Kenyan has the right of reply whenever he or she is persuaded to believe that there is malicious falsehood and inaccuracy in information about his personality, name, title or business. Since there has not been a clear line between open speech and hate speech, litigants tend always to trade on the lacunae in the legal system and turn over defamation cases despite the Defamation Act of 1992 (consisting only of 20 sections). However, the law is clear also on unintentional defamation under section 13.
Actually, there has not been any successful defamation case in Kenya due to such controversial concepts and doctrines in law, as politicizing justice process. There is poor jurisprudence on defamation law in Kenya. Politicians always gang-up (collective bargain) to support their ally in court saying that they are giving moral support. Some even apply for amicus curiae to offer more support to their colleague. Such collective bargain tend to determine the direction of justice.
Also to consider is the sense of belonging to a political party. If one belongs to a powerful and well connected and popular political party, then, he is a more advantage. In this case, the politician does not just care about hate speech. The weaker parties or communities are more vulnerable and must be careful about their speech as compared to others. This is the politics of patronage that propagates hate speech at the detriment of the administration of justice. This is what is referred as impunity. Furthermore, when one is rich he or she will get away with the crime in Kenya, so wealth and justice also must be considered inter alia. This is what is referred to as corrupting the administration of justice.
However, language must be discussed within the cultural and transcultural contexts. In some cultures saying one thing may sound normal to listeners but in some cultures saying a word that sounds defamatory is considered offensive. Calling someone son of a bitch may sound less offensive if the affected party’s culture does not see a bitch as bad, immoral and indecent. The contrary is when the community culture depicts a bitch as an evil person, immoral and impure. In such prurient societies, calling someone son of a bitch may be very offensive, therefore, illegal. But if such word is acceptable, people tend not to criminalize it.
It is also necessary to consider the perspective. In which perspective was the speaker using the word? Words can be changed using logic to express another meaning. This is to say, there is no regular language. There are many irregularities that end up in causing ambiguity. Justice system shall always rely on sources and causality of the an alleged offense. In addition, it is the procedure, expediency, as well as the technicality that matters mostly other than morality, consistency and traditions.
Whether in defense or in offense it is necessary to consider the doctrine in common law, the duty of care.
Every public speaker is bound to respect the duty of care meant for the public. Whenever one is uttering words or making an open speech in public, he or she, must be aware of the responsibility attached to the words used. Under the law of tort we are all bound to consider our duty to take care of others. This means, if the words can harm other individuals or the community or compromise such societal values as peace…shall form judgmental considerations.