NCIC commissioner Jerusah Mwaathime speaking on Citizen TV on August 3, 2026. /SCREENGRAB
Kenyan law protects freedom of expression, but that right is not absolute.
Speech that promotes hatred, discrimination or violence against individuals or communities can attract criminal and civil sanctions.
The legal distinction has come under renewed scrutiny after the National Cohesion and Integration Commission (NCIC) opened investigations into several senior political leaders over alleged hate speech.
Those under investigation include former Deputy President Rigathi Gachagua, Health Cabinet Secretary Aden Duale, Public Service Cabinet Secretary Geoffrey Ruku and Mukurweini MP John Kaguchia.
All four have denied making inflammatory remarks, maintaining that their statements have either been misunderstood or taken out of context.
The commission says preliminary investigations indicate the leaders may have contravened Section 13 of the National Cohesion and Integration Act, which outlaws hate speech, as well as provisions relating to ethnic incitement.
NCIC commissioner Jerusah Mwaathime said the commission would apply the law uniformly if investigations establish that any of the leaders have a case to answer.
"We are a new commission that has just come in. We are about two months in office and one of the things that we are working to regain is public trust," she said.
She also confirmed that a file relating to Gachagua's case had already been forwarded to the Office of the Director of Public Prosecutions.
Kaguchia, who was arrested on Monday following an overnight standoff at the Royal Media Services studios, was later arraigned in court and released on bail.
According to the NCIC, all four leaders are expected to begin appearing before the commission from next week to record statements over their respective remarks.
What amounts to hate speech?
Hate speech generally refers to communication that attacks, demeans or uses discriminatory language against an individual or group based on protected characteristics such as ethnicity, race, religion or gender.
Although those under investigation insist their remarks were lawful, the NCIC says context, intent and the likely effect of the statements are key in determining whether they amount to hate speech.
Speaking on Citizen TV on Monday night, Mwaathime explained that the commission distinguishes hate speech from constitutionally protected freedom of expression by examining the context in which remarks are made and the impact they are likely to have.
Referring to Kaguchia's case, she said investigators believed some of the remarks attributed to him extended beyond hate speech and raised security concerns.
"Because when you say that you will go and look for people under the bed and all that, then it stops being just hate speech, it becomes a security matter," she said.
She explained that while the Directorate of Criminal Investigations pursues criminal offences that require proof beyond reasonable doubt, the applicable standard of proof differs and the commission may pursue civil remedies and pursue non-prosecutorial interventions such as conciliation.
Other possible sanctions, she said, include fines, imprisonment, disqualification from seeking public office, public retractions and apologies, depending on the circumstances and applicable legal processes.
"For conciliation, the route that we follow is we try and see if these people can give public apologies, if they can retract their statements," she said.
Mwaathime further argued that public statements warning communities against voting in a particular way or associating with certain political groups could amount to hate speech if they instil fear or discourage citizens from exercising their democratic rights.
"That statement borders on hate speech because it's a statement of fear and that means that we should not sell fear," she said.
She said leaders occupying influential public positions carry greater responsibility because their words shape public discourse and may easily be accepted as fact by their supporters.
"So, in our interpretation we look at context and if the general interpretation is that this statement is supposed to inflict fear or to cause some sort of division or to cause somebody not to exercise their democratic rights, then it becomes hate speech," she said.
Mwaathime encouraged Kenyans across the political divide to exercise patriotism and avoid making remarks that may antagonise others.
The commissioner added that leaders summoned by the commission are legally required to honour the summons or warrants of arrests may be issued against them.
"It means that the police officers, the DCI are supposed to arrest and bring them to the commission. That's what the law provides, that's what's supposed to happen," she said.
Mwaathime said compliance with summonses demonstrates respect for the rule of law and sets an example for the public.
