SECTOR 1 Section 33A states: (c) hate speech; or (d) advocacy of hatred that (i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or (ii) is based on any ground of discrimination specified orcontemplated in Article 27 (4); while Section 27 (4) states: (4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. “You cannot say what hate speech is unless someone says a statement amounts to hate speech towards him or her. Sensitivity to hate speech varies from one ethnic group to the other and depends on the level of social tension. Since the post-election violence, just about anything can spark a passionate reaction.” Over the past few years, at least three Kenyan lawmakers have been dragged to court over alleged use of hate speech. Two of the cases have been dropped partly because “what people consider to be hate speech, the court does not.” There has been some attempt to formally define hate speech by media practitioners and one definition describes it as a statement urging action against a section of the population, especially an ethnic group. Yet, “far too many people call many things hate speech”. As a result, there is already evidence that the media have been forced to practice self-censorship in order to avoid being accused of using hate speech. When reporting conflicts, media outlets will avoid naming the different tribes in fear of this “hate speech” clause. Several ethnic groups are hardly called by name in media reports, especially when reporting tribal conflicts. While the new constitution specifically of freedom of expression and the media, it has not yet been tested in practice. Another drawback to the constitutional guarantees freedom of expression and of the media is the glaring absence of supporting policy and legislation. There are ongoing discussions to align the Media Act and Independent Communication Bill of Kenya to the new constitution. A draft Freedom of Information (FOI) Act that has been ready for over a decade still has to be tabled in parliament. The process is widely viewed as slow. In the meantime, the old legislation which guarantees fewer freedoms is still in force. AFRICAN MEDIA BAROMETER KENYA 2012 13