Of Expression, and Its Control

‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Salman Rushdie

In early January 2015, Alan Wadi Okego, a 25-year-old Moi University student, was arrested for posts he had made on social media against the Kikuyu ethnic community, and was charged, among other things, for ‘insulting’ President Uhuru Kenyatta over the passage of the controversial security laws. Hardly a week after his arrest, activist and blogger Kiplangat Abraham Mutai was also arrested, for his tweets alleging high level corruption that had caused ‘anxiety’ in official circles. Mutai had his mobile phone confiscated and his social media accounts shut down, setting out a twitter storm among Kenyans on Twitter, calling for his release. However, the Wadi and Mutai incidents are not isolated. Blogger Robert Alai, a ‘controversial ‘ social media activist to some, and a whistle-b lowing crusader to others, has had his own share of arrests and social media account closures, but has persisted on.

In 2013, the Ministry of Education’s National Drama Committee banned a play by Butere High School called “Shackles of Doom” from participating at the National Drama Festival on the grounds that the play was likely to incite hatred and endanger national security. The play featured a story of a community that benefited from a fictional country’s natural resources at the expense of other communities. The ban would eventually be lifted by the High Court following a petition by human rights activists.

More recently, the Kenya Film Commission has embarked on a rigorous censorship campaign, banning films such as the Oscar winning “The Wolf of Wall Street”, the Kenyan film “Stories of our Lives” based on true accounts from Kenya’s LGBT community, a film that had premiered to world acclaim at the Toronto International Film Festival and “Fifty Shades of Grey” based on a novel of the same name that has been widely sold in the country for the last three years.

The mainstream print and broadcast media have not been spared either. In January, the Media Council of Kenya, through a press release, said it was “contemplating the withdrawal of accreditation” of journalists from The Star newspaper and “excommunicating the paper from media enterprises regulated by the Media Council”. The Star newspaper had received no direct communication from the Media Council of the threatened action or the offence that has warranted the Media Council’s threat before this press release. One was left to speculate what articles or stories published by The Star had caused such grievous offence to the Media Council that they would issue a press release without any attempt to notify the newspaper beforehand. Of similar puzzlement is the passage of the Security (Amendment) Laws in December and its attempt to prohibit publishing or broadcasting any material on counter-terror operations without first getting approval from the police, a provision that has since been found to be unconstitutional.  The current on-going saga between the Communication Authority of Kenya and the National Media Group, Standard Media Group and Royal Media Services over digital migration is perhaps the latest, and darkest, example of that tussle between the democratic foundation of free speech, and the State’s desire to vest it under its thumb and control. .

Are all these incidents isolated? Have they been happening independent of each other or is there a gradual and systematic closure of the space for the freedom of expression and freedom of the press in Kenya? What is this freedom of expression to begin with? Is it an absolute right? When and how can it be controlled? Should it be controlled at all? Is there such a thing as controlling the freedom of expression for public protection if any gag of it will cease to be for the protection of the public, but will instead be for shielding the government or the elite from criticism?

Since the formulation of hunter-gatherer society, the control of speech and expression has been used as a tool for imposing hierarchy and control, dictating who is allowed to speak and who isn’t, whose voice can be heard and whose can’t, who can say what, and to whom, and with whose permission. Children should be seen and not heard. Women cannot speak at a gathering. The young do not challenge the decisions of the old. Slaves do not speak unless spoken to. The colonised do not have a voice. To challenge is to blaspheme and blasphemy means death. Permission to speak sir? Your Honour, may we approach the bench?

The freedom of opinion and expression, and its antecedent freedom of the press and the arts, is one of the cornerstones of any real democratic society. Yet, as history attests, this is a freedom that has been, and continues to be compromised across the world, including in the global West. It is inevitably linked to many other rights, including the freedom of assembly and association, the right to privacy and freedom from State interference in correspondence and personal property. Its origins, ironically, lies in the parliamentary immunity that Members of Parliament today enjoy, one that allows them absolute free speech without legal repercussions within the confines of Parliament. Uncanny then to imagine that it is they who pass legislation to compromise this very right for the citizens they represent.

The right to hold an opinion and the right of free thought are absolute, and it is almost impossible to control these. The freedom that human rights law speaks of when it speaks of freedom of expression really begins to enter play when those thoughts or opinions are spoken, written, drawn, published, acted or otherwise expressed, especially when expressed in public. It is even more crucial if the opinion is one in which the government or section of society find uncomfortable.  If the cornerstone of democracy is freedom of speech, it behoves a government to nurture this freedom, and protect it, even more so when the views being expressed are critical of its governance. Indeed, how else does one gauge the maturity of a democracy than by its ability to protect that which offends it? How different would a democracy be from a repressive dictatorship if it seeks to silence, censor and harm its critics and the voices of dissenting opinion? As Socrates said of the jurymen who sentenced him to death in Plato’s The Apology, in silencing their critic rather than listening to him, they have harmed themselves much more than they have harmed him.

The opponents to the freedom of expression have strongly argued, correctly, that rights and freedoms are not all unfettered, and that they carry with them a corresponding duty, largely in respect to the rights of others. In respect of many rights, this statement is broadly true. There are of course some non-derogable rights, rights that can never be restricted, such as the right to life (the death sentence argument notwithstanding), the protection against torture, cruel and inhuman treatment, the protection from slavery and servitude, the right to the protection of the law and the freedom of conscience.

However, even those rights that can, within legal limitations, be restricted, such as the freedom of expression, must never be so ridiculously curtailed or repressed, nor should their exercise be placed to such Orwellian regulations that would render the right to be non-existent in reality. In a democracy, the citizenry must never be fearful of voicing their opinions nor should laws be enacted to penalise those whose views are different from that of the majority.

Legislation across the world that have prescribed restrictions to speech and expression on grounds that have included blasphemy, pornography, indecency, propaganda for war, incitement, religious or racial hatred, and recently, the threat to security. Often what challenges most human rights lawyers and activists is not the logic behind the restriction but the intentional ambiguity with which laws prohibiting speech and expression are drafted, with provisions that leave room for much abuse and selective application. The sedition laws of the 1980s Kenya are a prime example.

Public sensitivities of what is an acceptable opinion and what isn’t has long dictated not only the censorship of books, art, film and music, but in middle ages Europe, contrary opinion sent men and women to the stake for heresy, witchcraft and professing faiths other than Roman Catholicism. In more recent times, those opposed to the ‘popular’ wars in Vietnam, Afghanistan or Iraq have been publically censored. Divergent views on the “war on terror” pits one on the egregious ‘with-us-or-against-us’ scale, and in Kenya any honest conversation for justice for the 2007 post-election violence has become impossible without some officially sanctioned public flogging. To speak is a sin.

We seldom connect the freedom of expression with the open blooming markets around us, or the fostering of knowledge and science. Yet a capitalist market economy can only thrive when the right of expression exists, not only for advertisement, but also for market analysis and open debate. Capitalism is the economic expression of the freedom of thought in the space of production. It allows men and women to think freely in the market, create material expressions of their ideas and bring those ideas to market without coercion. The existence of a free media provides a platform for those ideas to be advertised to the public, and for analysts to make commentaries on the state of the marketplace. Where expression starts to get repressed, the death of capitalism follows.

As long as art has existed, so too has censorship. Art, that most aesthetic creation of the human imagination, one that Oscar Wilde opined was merely an imitation of life, has caused more grief, conflict and authoritarian censorship than perhaps any other form of expression. Societies have been disturbed by words, images, nuances, suggestions, and even mere gestures. However, progressively, democracies have matured to find space for all forms of art, as long as the art form does not threaten the lives or existence of another person or groups of people.  What were once “obscene” publications such as D.H. Lawrence’s Lady Chatterley’s Lover or Vladimir Nabokov’s Lolita are now considered literature classics. Material whose content is assessed to be pornographic is appropriately labelled, and like cigarettes and alcohol, strictly restricted for the use of only interested adults. When State authorities appreciate that its citizenry is comprised of an intelligent, literate public capable of making its own informed decisions, then a rating system to guide them on choice is sufficient control, as opposed to outright censorship or bans, more so in an age where a lot of content can be streamed online and accessed on a smartphone. There is little difference between blanket censorship, bans and the burning of books, and as Heinrich Heine said, “where they burn books, they will ultimately burn people as well.”

In the aftermath of the Charlie Hebdo killings in Paris, a fierce but healthy debate ensued on the place of expression and offence, on the right to publish images that are considered offensive, not just to Muslims, but also to France’s other large immigrant minorities, versus the right to express the views that those images, an aggressive dissent from religion, were meant to depict. Whereas there might never be agreement on the subject matter of the Charlie Hebdo images, the one thing there is consensus on is that murder, legislation or State control of expression of the kind that is meant to silence it completely is an exercise in futility. The Nigerian-American writer Teju-Cole aptly noted in his excellent New Yorker piece Unmournable Bodies,” it is possible to defend the right to obscene and racist speech without promoting or sponsoring the content of that speech. It is possible to approve of sacrilege without endorsing racism.”

Like the proverbial boy who was brave enough to point out that the Emperor’s parade of his new clothes was a farce, he was but naked to the skin, there will always be voices in society that will speak truth to power, whose views might offend the public, who will say things that may cause “anxiety”, or even tell us that the Wizard of Oz we believe in is nothing more than a man behind the curtain turning levers. A democracy cannot exist if these voices cannot speak, if they are not protected, and if the platforms for their expressions are shut down or penalized, or if we, like the townsmen of medieval Europe burn them on a pile of wood, only to beatify them later.

What is the freedom of expression? It is Wadi and Mutai in a society where they are not jailed for their tweets; where reporters can report truthfully without fear; where adult citizens have the right to read books and see films of their choice; where ideas reach the marketplace and businesses have platforms to advertise; where dissenting voices are protected, and where society bustles on the vibrancy of criticism, science, arts and letters. Control a thought, repress speech, penalise the press, and like a house of cards the pillars of democracy will crumble.

This article first appeared in Awaaz magazine, Volume 12, Issue 1

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