The National Cohesion and Integration Commission’s Complaint Process

The National Cohesion and Integration Commission’s Complaint Process

Background:

In Kenya freedom of expression is enshrined in the Constitution of Kenya under the provisions of Article 33 as stipulated therein 

The National Cohesion and Integration Act provides for the establishment of the National Cohesion and integration Commission (NCIC).The commission was set up to deal with the problem of tribalism which was identified as one of the root causes of violence following the 2007 elections .

In the discharge of its functions the NCIC is under the duty to ensure that the actions of all citizens promote National Cohesion and do not sow seeds of hatred .This is particularly important during political campaigns. Parties, Candidates and their supporters are also under duty to ensure that they do not engage in actions that amount to hate speech.

What is Hate speech?

Hate speech is variously defined as any utterances of words intended to incite feelings of contempt, hatred, hostility, violence or discrimination against any person, group or community on the basis of ethnicity, race or religion.

It is also defined as using threatening, inciting, abusive, or insulting words or behavior, or display of any written materials with the intention of stirring ethnic hatred; it also refers towards or actions which incite hatred, disaffection or prejudice based on ethnicity, race, colour or sex.

Under Article 33(2) of the Constitution of Kenya, the right to freedom of expression does not extend to-

• a)   Propaganda for war;
• b)      Incitement to violence ;
• c)      Hate speech; or
• d)      Advocacy of hatred that : -
• (e)    Constitutes ethnic incitement, vilification of others or incitement to cause harm; clause (3) states that: in the exercise of the right to freedom of expression, every person shall respect the right and reputation of others.

In other words, your right and fundamental freedom end up where mine starts in respect of the same rights.

What the Law states:

Section 62(1) – Any person who utters words intended to  incite feelings  of contempt ,hatred, hostility ,violence or discrimination against any person, group or community on the basis of ethnicity ,race ,or religion commits an offence and shall be liable on conviction to a fine  not exceeding one million shillings or to imprisonment for a term not exceeding five years, or both such imprisonment  for  a term not exceeding  five years ,or both such imprisonment and fine.

Section 13 of the same National Cohesion and Integration Act, 2008, provides that –

(1)   A person who

a)      Uses threatening, abusive or insulting words or behavior or display any written materials

b)      Publishes or distributes written materials

c)       Presents or directs the performance the public performance of a play;

d)      Distributes, shows or plays a recording of virtual images; or

e)      Provides, produces or directs a programme; which is threatening, abusive or insulting or involves the use of threatening abusive or insulting words or behavior, commits an offence if such person intends to stir up ethnic hatred, or having regard to all circumstances, ethnic hatred is likely to be stirred up.

(2)   Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.

(3)   In this section’ ethnic hatred’’ means hatred against a group of persons defined by reference to colour, race, nationality (including citizen or ethnic or national origins.

Discrimination based on ethnicity and Religion.

Under Section 3 (1) (2) (3), (4) and section 6(1) & (2) of the Act - A person discriminate s against another by:

v  Treating a person from one ethnic or religious group less favorable than one would treat another from  a different ethnic or religious group.

v  Applying a requirement or condition which is unjustifiable or detrimental to a person from a particular ethnic or religious group.

v  Subjecting another to harassment on ethnic or religious ground for the purpose of violating their dignity or creating a hostile environment.

What is a Complaint under this Act ?

Under this Act, a complaint is a written expression of displeasure and dissatisfaction over discriminatory treatment that sets out reasons and circumstances that the complainants believe offer sufficient ground to support their claim against another person, persons or entity.

The basis of the action in question must be ethnic, racial or religious.

v  A person shall complain to the commission by loading a written complaint by hand, facsimile or other electronic transmission or post.

v  Any person who claim that another person has contravened a provision   of the Act in relation to that person may complain to the Commission as prescribed above.

v  Two or more persons may complain jointly.

v  A complaint may be made by or against an individual as well as a body of persons whether corporate or unincorporated.

v  In order to complain to the commission, it is not necessary for the alleged concentration to relate to the complainant.

The Act provides that the Commission may conduct investigations on its own motion

How to Lodge a Complaint :

Under section 43and 44 of the Act : -

v  Any person who claims that a person has discriminated against him/her or another on racial or ethnic grounds engaged in hate speech inciting or inflammatory talk may complain.

v  Two or more persons may complain jointly and the complaint may be made by or against individuals or organizations.

v  A person shall complain to the commission by lodging a written complaint to the commission by hand, fax or other electronic transmission and the commission shall notify the respondent in writing after receiving it.

Under section 25(i)-the commission can on its own accord investigate issues of ethnic and racial discrimination as well as sources and channels of hate speech and inflammatory statements.

Under section 48(I) –The Minister (sic - for internal security) may also refer any matter to the Commission if he/she considers that will be obliged to launch an investigation

Complaints Handling Procedure

Upon the receipt of a complaint:

1.      The commission must notify the respondent about the complaint as soon as possible

2.      The commission may decline to entertain some complaint if the complaint falls within the provisions of Section 45 (I) of the Act.

3.      Where the commission declines to entertain a complaint, it must notify the complaint within Sixty (60) days was lodged.

4.      Further, before the commission declines to entertain a complaint it may, by written notice ,invite any person to attend before it or to produce any document.

5.      The commission may decline to accept documents if it has had no substantive response from a complaint twelve months after a request by the commission for such a response.

6.      The commission shall refer a complaint to the secretary of it consider s it reasonably possible that such a complaint may be successfully conciliated.

7.      Where the commission does not consider it reasonably possible that a complaint may be successfully conciliated it shall notify both the complaint and respondent in writing.

8.      The commission shall set a complaint down for hearing if it does not consider it reasonably possible that the complaint may be successfully conciliated .Such hearing shall be set in motion once the complainant has written to the commission requiring the commission to set down the complaint for hearing.

9.      The commission may dismiss a complaint in 8 above if the complainant does not write to the commission requiring a hearing.

10.  The commission shall act as in 8 above if its efforts at conciliation fail.

If the commission considers that a complaint:-

·         Is frivolous misconceived or lacking in substances.

·         Involves subject matter that has been adequately dealt with by a court; or

·         Relates to an alleged contravention of the Act that took place more than twelve months before the complaint was lodged then the commission may decline to entertain the complaint by notifying the complainant and the respondent in writing within sixty days after the day the complaint was lodged

Before declining to entertain a complaint the commission may by written notice invite any person to attend before the commission or a member of staff of the commission for the purpose of discussing the subject matter of complaint or produce any document specified in the notice.

The work of the commission extends beyond the mission of encouraging and promoting ethnic religious and racial harmony among the diverse communities in Kenya

Complaint against Constitutional Commission

Like judges members of constitutions commissioners and holders of independent offices enjoy security of tenure. What this implies is that they cannot be dismissed at will.

However under Article 251(i) of the Constitution of Kenya a member of a commission(other than an ex-official member)or the holder of an independent office may be removed from the office only :-

a)      Serious violation of the commission or any other law ,including contravention of chapter six;

b)      Gross misconduct whether in performance  of the performance of the members or office holder functions or otherwise

c)      Physical or mental incapacity to perform the function of office;

d)      Incompetence ;or

e)      Bankruptcy

The commission of Administrative Justice

In Kenya, there is the office of the Ombudsman. This office is mandated to receive complaint from the citizens and is also obligated to address issues of maladministration in respect to services failure inaction in efficient discourtesy incompetence and unresponsiveness in public service.

The commission on administrative justice seeks to operationalize the provision of Article 47 respecting the right of every person to fair administrative action in public service.

The term public service means the collectivity of all individual other than State Officers performing a function within a state organ. A” state organ” means a commission office Agency or other body established under the constitution of Kenya.

Under Article 75, respecting the conduct of state officers;

1.      A state officer shall behave whether in public and official life, in private life or in association with other persons in a manner that avoids;

a.      Any conflict between personal interest and public and official life.

b.      Compromising any public or official interest in favor of a personal interest; or

c.       Demeaning the office the officer holds

It is instructive that members of parliament and member off county, assemblies are State Officers and at the some time representatives of the people .Thus the provisions of Article 75, above applies to the m.

In conclusion .The national cohesion and integration commission is a very critical state organ that is enjoined to keep in check and tame wayward politicians who have no scruples creating civil disturbance and fomenting cheeps in furtherance of vanity and pursuit of illiberal within.

This commission must create a public awareness that the Kenyan people are entitled to make citizen arrest of such politicians and institute proceedings against them under the National Cohesion and Integration Act of 2008 – Mfalme Davis.

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