Punishing flat-earthers for believing that the earth is flat: An analysis of the unconstitutionality of section 12 of the Computer and Cybercrimes Act, 2018

Introduction

What is true about the adherents of a particular religion or religious sect and people who believe that the earth is flat? What is true about them is the fact that they believe that the information that they spread about the belief is true and that any other person believing otherwise is wrong and misinformed. Are flat-earthers and adherents of  the teachings of Jehovah Wanyonyi entitled to this belief? Yes they are and Article 32 of the Constitution protects them.

To many people, flat-earthers and adherents of Jehovah Wanyonyi are deluded and that their teachings and writings should be censured. The same can be said of what people refer to as “fake news”. Most people would wish that purveyors of fake news are punished. They should be fined and where they cannot pay the fines, bundled into prisons. This is because they cause a lot of anguish to people that get to believe in what they spread through the internet. This is what section 12 of the Computer and Cybercrimes Act, 2018 seeks to address.

An analysis of section 12 of the Computer and Cybercrimes Act, 2018

Section 12 of the Computer and Cybercrimes Act, 2018 states as follows:

A person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.

On the other hand, the section 2 of the Act defines “data” as follows:

“Data” means any representation of facts, information or concepts in a form suitable for processing in a computer system, including a program suitable to cause a computer system to perform a function;

The definition is problematic in a number of ways as discussed hereinafter. Firstly, there is no yardstick upon which one measures what is false, misleading or fictitious data. Secondly, there is no yardstick upon which one can establish that the person publishing the data knows that he wants the data to be acted upon as authentic. Thirdly, the definition of data is very broad. Does fictitious data in the context of section 12 include data that is published with the intention of concealing something? Is satire publicized on social media or in a blog post amount to false or misleading data? What about a byline? What happens when someone publishes authentic information about a scandal and then uses a false byline to hide his or her identity? Doesn’t that amount to misleading data inasmuch the information published is authentic?

Ascertaining the unconstitutionality of section 12 for its being too broad: The Overbreadth doctrine

It is established that information about one religion may be seen as a lie by another religion. The same case happens with denominations and sub-sects within a religion. For instance, what is considered as the truth by Seventh-day Adventists may be considered as apostasy among adherents of the Roman Catholic faith. What happens when a member of the Seventh-day Adventist church states what he or she beliefs to be true about the Catholic Church but the same is considered as false and misleading by members of the Catholic Church? Do we convict the Seventh-day Adventist Church’s member when he or she knew that the information published is true and is meant to relied upon by a person who wants to join his or her church? If we go ahead and convict such a member, will we not be violating his right to freedom of conscience and opinion under Article 32 of the Constitution?

The Supreme Court of the United States has established when a definition is very broad, there is danger that such broad definition may be used to roll back rights established under the Bill of Rights. The Court has had cases where Acts of state legislatures provided for broad definitions and held that such pieces of legislation were unconstitutional to the extent that a broad definition may limit the enjoyment of certain rights provided for in the American Constitution since a broad definition is amenable to abuse and misuse.

The reason behind this that when a definition is too broad, it becomes vague and ends up covering activities that are protected by the Bill of Rights. The end result is that such an Act ends up prohibiting or making criminal behavior or activity that is protected under the Bill of Rights. This is called the “overbreadth doctrine” under American jurisprudence.

In the American Case of Board of Trustees, State University of New York v. Fox (1989) 492 U.S. 469, a dispute relating to the broad definition of law was argued before the Supreme Court of the United States. In that case, The State University of New York (SUNY) promulgated regulations governing the use of school property, including dormitories. One of these, Resolution 66-156 (1979), stated:

 

No authorization will be given to private commercial enterprises to operate on State University campuses or [472] in facilities furnished by the University other than to provide for food, legal beverages, campus bookstore, vending, linen supply, laundry, dry cleaning, banking, barber and beautician services and cultural events.

In 1982, a representative of the American Future Systems, Inc. (AFS), a company that sold housewares, such as china, crystal, and silverware, to college students, conducted a demonstration of the company’s products in a student’s dormitory room at SUNY’s Cortland campus. Campus police asked her to leave because she was violating Resolution 66-156. When she refused, they arrested her and charged her with trespass, soliciting without a permit, and loitering. It was contended that the Regulations violated her First Amendment rights on free speech since it application extended to non-commercial speech. The Supreme Court held:

[…] Resolution 66-156 must nonetheless be invalidated as overbroad, since it prohibits as well fully protected, noncommercial speech […] On the record before us here, Resolution 66-156 must be deemed to reach some noncommercial speech. A stipulation entered into by the university stated that the resolution reaches any invited speech “where the end result is the intent to make a profit by the invitee.” More specifically, a SUNY deponent authorized to speak on behalf of the university under Federal Rule of Civil Procedure 30(b)(6) testified that the resolution would prohibit for-profit job counseling in the dormitories, id., at 133; and another SUNY official testified that it would prohibit tutoring, legal advice, and medical consultation provided (for a fee) in students’ dormitory rooms, see id., at 162, 181-183. While these examples consist of speech for a profit, they do not consist of speech that proposes a commercial transaction, which is what defines commercial speech. Some of our most valued forms of fully protected speech are uttered for a profit. (Emphasis added)

Again, the Supreme Court of the United States arrived at similar determination in the case R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). In that case, the petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. The cross was erected and burned in the front yard of an African American family that lived across the street from the house where the petitioner was staying. The Petitioner, who was a juvenile at the time, was charged with two counts, one of which a violation of the St. Paul Minnesota’s Bias-Motivated Crime Ordinance which Ordinance provided:

Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

 

The Petitioner moved to dismiss the count under the Bias-Motivated Crime Ordinance on the ground that it was substantially overbroad and impermissibly content based, and therefore facially invalid under the First Amendment on Speech. The Supreme Court of the United States held as follows:

[…] we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality-are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some wordsodious racial epithets, for example-would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or genderaspersions upon a person’s mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents. (Emphasis added)

Overbreadth doctrine in the context of the Kenyan constitution

 

Regard must be had to Article 33 of the Constitution. The Constitution of Kenya at article 33 provides that:

Every person has the right to freedom of expression, which includes—

freedom to seek, receive or impart information or ideas;

freedom of artistic creativity; and

academic freedom and freedom of scientific research.

The right to freedom of expression does not extend to—

propaganda for war;

incitement to violence;

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  or contemplated in Article 27 (4).

In  the  exercise  of  the  right  to  freedom  of  expression,  every person shall respect the rights and reputation of others.

 

Further, the Constitution of Kenya at Article 34 states as follows:

(1) Freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2).

(2) The State shall not—

exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or

penalise any person for any opinion or view or the content of any broadcast, publication or dissemination.

Broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that—

are necessary to regulate the airwaves and other forms of signal distribution; and

are independent of control by government, political interests or commercial interests.

 

Article 32 of the Constitution provides for the right to freedom of conscience. It states that:

  1. (1) Every person has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.

(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.

(4) A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.

 

Therefore, it follows that if section 2 of the Act is interpreted broadly and “data” is defined broadly, then it means that Article 33 on freedom of expression, Article 32 on the right to freedom of conscience and Article 34 on Freedom of media will be violated.

Data entered and published through the digital media may include sermons about a church by clergymen or members of the laity wishing to proselytize other people into their faith. It could mean a fake byline used in a blog post where every other information is authentic so as to hide the identity of the person publishing the information. Therefore, section 12 can be used to criminalise acts that are protected under the Constitution such as the right to opinion.

Article 32 of the Constitution provides for the right to freedom of opinion. What is opinion? The Black’s Law Dictionary defines “opinion” as a person’s thought, belief, or inference. Are all beliefs, thoughts or inferences true? No. It is a fact that the earth is spherical and that it revolves around the sun. These are facts provided by images taken from space among other experiments that can be done on the surface of the earth to prove that the earth is spherical. Despite this amount of evidence, there are people that still believe that the earth is flat. The information that the earth is flat is not only fictitious but also false and misleading. The people that publish information on their belief that the earth is flat do so with the knowledge that such information is be relied upon.

It is for this reason that on May 3, 2018, Steven Novella analyzed the modern belief in a flat Earth, and concluded that, despite what most people think about the subject, the believers in a flat Earth are being sincere in their delusion, and are not “punking” others on this subject. He stated that:

In the end that is the core malfunction of the flat-earthers, and the modern populist rejection of expertise in general. It is a horrifically simplistic view of the world that ignores (partly out of ignorance, and partly out of motivated reasoning) to real complexities of our civilization. It is ultimately lazy, childish, and self-indulgent, resulting in a profound level of ignorance drowning in motivated reasoning.[1]

Do we criminalise the belief in a flat earth? No we cannot. If we do so, we will violate the right to freedom of opinion, belief and conscience that flat-earthers are accorded by Article 32 of the Constitution. Voltaire stated that one may not agree with someone but it is a solemn requirement that one protects that right even when not in agreement with it.

This reasoning can be used with regard to the phenomenon of “fake news”. It is a fact that fake news affected a number of crucial events in the history of the world in the past three years. This can be said of the election of Trump to the White House, Brexit and the rise of right wing movements around the world. The Facebook Privacy scandal is an attestation of the far-reaching ramifications of fake news. Section 12 of the Computer and Cybercrimes Act seeks to rein in fake news and other posts in the blogosphere that may not necessarily true but motivated by individual beliefs and thoughts. If you criminalise such thoughts and beliefs, you are no worse than the Big Brother as portrayed in George Orwell’s novel “1984”. Such an action will turn enforcement bodies in Kenya into what Orwell referred to as “the thought police”.

Therefore, as much as one may think that the provisions of section 12 are going to rein in fake news and other unpleasant articles that exist in the blogosphere, one must remember that such a provision is unconstitutional. It is unconstitutional to the extent that it violates Article 32 of the Constitution. Secondly, it is unconstitutional because it introduces criminal sanctions for matters relating to the freedom of media under Article 34. Article 34(2) is clear that the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or penalise any person for any opinion or view or the content of any broadcast, publication or dissemination. Therefore, section 12 is patently a violation of Article 34 of the Constitution. Thirdly, Article 33 gives everyone the right to freedom of expression as long as it is not propaganda for war, hatred etc. A person exercising the right to freedom of expression must ensure that in doing so, he or she does not impeach other people’s reputation. In that regard, the tort of defamation exists to ensure that those whose reputation is impeached by a publication are compensated in civil courts and not by bundling them into prisons.

Conclusion

Section 12 of the Computer and Cybercrimes Act is anachronistic, unconstitutional and uncalled for. To sum this up, the Supreme Court of the United States in the case Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993) stated that:

[…] The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.

Therefore, as to whether data presented in a website is valuable, false, misleading or not, it is not the work of the government to assess the falsity or otherwise of such information. It is the writer and the audience that has the powers to establish if such information is true or not. As such, section 12 of the Computer and Cybercrimes Act is unconstitutional.

 

 

[1] https://theness.com/neurologicablog/index.php/what-the-flat-earth-movement-tells-us/ (accessed 17 May 2018)

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The Film And Stage Plays Act And The Kenya Film Classification Board Are Colonial Relics That Should Be Abolished

Introduction

When I watched the trailer to the movie “Rafiki”, I couldn’t help but notice the familiar images of Nyayo Highrise Estate on Mbagathi Way, Nairobi. I happened to have been at Nyayo Highrise during the shooting of some of the scenes from the movie (something on a political campaign) and it did not cross my mind that whatever was being filmed was going to capture the imagination of the world, a year later. Rafiki, despite its theme, is one of the “lucky films” that were shot in “Kenya” with authentic Kenyan scenes. Other famous movies were not that lucky. Take for instance the movie “Inception”.

The movie “Inception” is regarded as one of the most “cerebral” movies that one must watch in their lifetime. This is in addition to other major Hollywood blockbusters such as “The Matrix”. Inception is a neo-noir science fiction film starring Leonardo DiCaprio as a professional thief who steals information from various persons through infiltrating their subconscious. He engages in corporate espionage where he steals information from one company to another by infiltrating the subconscious minds of the intended victims through “shared dream world”.

The movie is set up in a number of locations. One of the locations is Mombasa. However, you will be disappointed, when watching the movie, that the Mombasa it portrays is not the Mombasa that we all know about. In a classic make-it-real that is associated with Hollywood, the Mombasa scene has someone reading a copy of Taifa Leo but upon close observation, you will realise that the aerial photo of the “Mombasa” in the movies does not resemble the “Mombasa Raha” that we know of. The Mombasa scene is set in Tangier, Morocco. What is the reason for this? Prohibitory legislations that are not more or less leftovers of colonial legacy in Kenya that fly in the face of the right to freedom of artistic expression as provided for under Article 33 of the Constitution

Understanding the right to freedom of artistic creativity

Article 33 of the Constitution provides that every person has the right to freedom of expression which includes the freedom of artistic creativity. The article goes on to provide that the right to freedom of expression does not extend to: propaganda for war, incitement to violence, hate speech, advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm; or is based on any of the grounds provided for under Article 27(4) of the Constitution.

What is freedom of artistic creativity?

Artistic creativity is defined as the freedom of an artist to produce art to his/her own insight. This includes the freedom to produce music in a manner that fits the artist’s own insight or making a movie that fits the movie maker’s own insight. An extrapolation of this definition affirms the fact that when exercising his or her right to freedom of artistic expression, a part is not obligated to factor in another person’s insight. This is because factoring in another person’s insight goes against the individual nature of the freedom of artistic expression. For instance, by requiring that a musician removes some words from his or her music for sounding “gross” according to a particular listener’s insight is a violation of the individualistic nature of the right to freedom of artistic expression.

During the Human Rights Council Session 30 held on the 18th of September 2015, the Ambassador of Latvia, Jānis Kārkliņš, affirmed the individualistic nature of the freedom of artistic expression. He told the Council that:

In addition to being an integral part of the protected human right to freedom of expression, artistic and creative expression is critical to the human spirit, the development of vibrant cultures, and the functioning of democratic societies. Artistic expression connects us all, transcending borders and barriers. Artistic expression can challenge us and change the way we view the world.[1]

It is with this view in mind that the American Civil Liberties Union states that if a society is pride itself in being free, then such a society must be based on the principle that civil and political rights are very personal. As such, an individual is has the right to decide the type of entertainment that he or she wants for himself or herself or what he or she receives or creates. Therefore, once the government starts censoring what it deems unfit and one supports it; he or she sets ground for it to censor you as well. Like a poisonous gas, once the wind shifts, the gas will waft towards your direction and harm you as well.[2]

The harm cause by unnecessary censorship can be seen in the fact that a movie such as Inception could not be shot in Kenya because of very prohibitory laws in the form of the Film and Stage Plays Act. The same can be said of the embarrassment that Kenya has faced abroad after banning the movie “Rafiki”. Remember the movie on Kimani Maruge or the other movie on Princess Elizabeth sleeping at the Treetops and waking up the following day as Queen Elizabeth? They were all shot in South Africa because the licensing regime in Kenya, courtesy of bodies such as the Kenya Film Classification Board, made it difficult to shoot those movies on location.

Therefore, the Film and Stage Plays Act is both an affront to the Constitution as it flies in the face of Article 33 of the Constitution on the freedom of artistic creativity. It is also an affront to international law on the freedom of artistic creativity. It is for this reason that the UN Special Rapporteur on the right to artistic expression and creation, Ms Farida Shaheed, presented a report to the UN Human Rights Council on the 4th of June 2013.[3] She recommended that in order for states to protect the right to freedom of artistic creativity and expression and to conform to international obligations on the same, the following must be done:

  1. States should abolish prior-censorship bodies or systems where they exist and use subsequent imposition of liability only when necessary under article 19 (3) and 20 of ICCPR. Such liability should be imposed exclusively by a court of law. Prior censorship should be a highly exceptional measure, undertaken only to prevent the imminent threat of grave irreparable harm to human life or property. Avenues for the appeal before an independent entity of any decision to exercise prior restraint should be guaranteed;

 

  1. Classification bodies or procedures may be resorted to for the sole purpose of informing parents and regulating unsupervised access by children to particular content, and only in the areas of artistic creation where this is strictly necessary due in particular to easy access by children. States shall ensure that (a) classification bodies are independent; (b) their membership includes representatives of the arts field; (c) their terms of reference, rules of procedure and activities are made public; and (d) effective appeal mechanisms are established. Particular attention should be paid to ensuring that the regulation of access by children does not result in prohibiting or disproportionately restricting access for adults;

 

  1. Decision makers, including judges, when resorting to possible limitations to artistic freedoms, should take into consideration the nature of artistic creativity (as opposed to its value or merit), as well as the right of artists to dissent, to use political, religious and economic symbols as a counter-discourse to dominant powers, and to express their own belief and world vision. The use of the imaginary and fiction must be understood and respected as a crucial element of the freedom indispensable for creative activities;

 

  1. States should abide by their obligation to protect artists and all persons participating in artistic activities or dissemination of artistic expressions and creations from violence by third parties. States should de-escalate tensions when these arise, maintain the rule of law and protect artistic freedoms. The police should not charge artists and cultural institutions for the costs of their protection.

 

  1. States should address issues regarding the use of public space for artistic performances or displays. Regulation of public art may be acceptable where it conflicts with other public uses of the space, but such regulation should not discriminate arbitrarily against specific artists or content. Cultural events deserve the same level of protection as political protests. States, private institutions and donors are encouraged to find creative solutions so as to enable artists to display or perform in public space, through, for example, offering open spaces to artists. Where relevant, in particular for permanent visual artworks, States should facilitate dialogue and understanding with the local communities.

 

From the above recommendations, it can be concluded that the Kenya Film and Classification Board and the Act of Parliament establishing it are in violation of principles of international law. This is in contravention of the provisions of Article 2 of the Constitution. The censorship measures that are employed by KFCB are in total contravention of the recommendations made by the Special Rapporteur. It is recommended that bodies such as KFCB should be abolished because they provide for prior-censorship.

For instance, section 4 of the Act provides that before someone makes a film in Kenya, such film must be licensed and that if in the opinion of the Board it is found as not meeting their requirements, such licence can be denied. It is recommended that censorship should be based on liability when necessary under article 19 (3) and 20 of ICCPR. This two articles provide on the freedom of expression and its limitation.

Another important factor that has not been taken into consideration by KFCB relates to the recommendation that procedures relating to classification should be related solely to informing parents and regulating unsupervised access by children to particular content, and only in the areas of artistic creation where this is strictly necessary due in particular to easy access by children such as TV broadcasts. Encroachment into the domain of internet video-streaming flies in the face of the right to freedom of expression.

States are also required to ensure that:

  • classification bodies are independent;
  • their membership includes representatives of the arts field;
  • their terms of reference, rules of procedure and activities are made public; and
  • effective appeal mechanisms are established. Particular attention should be paid to ensuring that the regulation of access by children does not result in prohibiting or disproportionately restricting access for adults.

The Film and Stage Plays Act contravenes all these recommendations under section 11A which provides for the Board. The Board is not independent. Its membership does not include representatives of the arts field and the terms of reference of those that make up the Board are not in the public domain. Also, in trying to protect children as provided for under section 15, the Board goes against its mandate by prohibiting or disproportionately restricting access of content to adults by basing its terms of reference on extraneous considerations such as “Kenyan morals” and “fighting homosexuality” in Kenya.

It must be remembered that the Universal Declaration of Human Rights came into being in 1948. It must also be remembered that the International Covenant on Civil and Political Rights came into force in the year 1966. It must also be noted that in 2010, Kenya came up with a Constitution that provided for, among other rights, the right to freedom of expression which includes the right to freedom of artistic expression and creation. What about the Film and Stage Plays Act? The Act was assented to on the 22nd of November, 1962 and its date of commencement is 1st October, 1963.It is indeed a colonial piece of legislation. The impression created by the date that Act became law points towards a law that is not only anachronistic and colonial but also out of sync with the domain of human rights as provided for under ICCPR and the current Constitution of Kenya. It is time it was taken out of our law books.

Conclusion

On the 17th of April 2018, Theresa May, the Prime Minister of the United Kingdom said that she deeply regretted the role of the British colonial era in criminalising same-sex relations in its former colonies. She said: “Across the world discriminatory laws made many years ago continue to affect the lives of many people, criminalising same sex relations and failing to protect women and girls,” I am all too aware that these laws were often put in place by my own country, They were wrong then and they are wrong now.”

The Film and Stage Plays Act was an Act assented to by colonial authorities in the spirit of advancing British and “Christian” morals as understood by the then British society. It was shaped in the form of Obscene Publications Act 1959 and the Theatres Act of 1843 that has now been repealed by the British Parliament. The law, a colonial relic, was wrong then in its intentions, and is wrong now. In addition is patently unconstitutional and therefore, must be repealed.

California’s economy was worth $2.816 trillion as of 2017. Its per capita income was $69,477 as of 2017. It is home to the American movie industry aptly named Hollywood. In 2016 alone, the American movie industry raked in 11.37 billion US dollars in its ticket sales in the United States and Canada. This figure does not include figures earned by Hollywood from countries outside North America. This is almost of Kenya’s annual budget of 26 billion for 2017/2018 financial year.

As one can attest from those figures, censorship hinders industry and the difference between Kenya and Hollywood’s earnings is an affirmation of the fact that restrictive laws hinder the development of the film and movie industry at the expense of our economic wellbeing. The reason why Inception did not shoot its Mombasa scenes on location was because of colonial relics such as the Film and Stage Plays Act.

Therefore, KFCB’s mandate is an affront to the freedom of artistic creativity and expression. It is also an affront to the economic wellbeing of the country as far as the movie industry is concerned.

 

 

[1] Ole Reitov ‘Five challenges to artistic freedom’ https://en.unesco.org/Artistic-Expression (accessed 16 May 2018).

[2] ACLU ‘Freedom Of Expression In The Arts And Entertainment’ https://www.aclu.org/other/freedom-expression-arts-and-entertainment (accessed 16 May 2018).

[3]‘ UN report on the right to artistic expression and creation’ https://freemuse.org/news/un-report-on-the-right-to-artistic-expression-and-creation-now-available/ (accessed 16 May 2018).

My case against the celebration of the birth of a ‘royal child’

Image

A few months ago, Kenyans shouted themselves hoarse telling the West to keep off their politics and let them face the consequences of their choices. The defiance was confirmed by the election of Uhuru Kenyatta and William into power. I personally do not subscribe to the school of thought of having the West play patron to every issue in other parts of the world that are considered less developed. What irks me most is to see the same people that make hue and cry against the West during elections pay homage to Western culture and traditions to such levels that will leave citizens of the same Western countries amazed.

The last few days have been abuzz with the news that the Duchess of Cambridge was about to give birth to a ‘royal baby. He has been named Prince George Alexander Louis. I am not certain about the last two names; they may be alluding to Alexander the Great and Louis XVI, who knows? I don’t really know what being a ‘royal child’ is but I believe I am one by choice and I can take that to the bank. I am special in my own way and I believe we all are. We should not confine ourselves to a claustrophobic view of life to such an extent that we look down upon our cultures and traditions for those from the West.

I was old enough to witness the painful divorce between Prince Charles and Princess Diana on 28 August 1996. I was also old enough to watch Diana’s requiem mass on T.V in 1997 exactly a year after the divorce. I have grown up hating the fact that we are still stuck in anachronism forgetting that we fought for independence to rid ourselves of imperialism and let the sun set on the British Empire. That we are awed by royal names, royal weddings and births at this time and age leaves a lot to be desired. This is a clear manifestation of the ‘colonisation’ of the mind that Ngugi wa Thiong’o exhorts us to unshackle ourselves from. The fact that Kenya still marketed itself as a choice destination for tourists from Europe on the basis that Prince William proposed to Kate Middleton in Kenya confirms that we have a long way to go as far as decolonisation of the mind is concerned.

So here comes Prince George Alexander Louis and we were the first on the line heaping congratulatory messages on the ‘royal couple’. This must be embarrassing to the Mau Mau veterans who just the other day received alms for compensation for the atrocities that the ‘royals’ in their ‘gulags’ of Manyani, Kapenguria, Maralal etc. inflicted on them for fighting for our freedom. I am not against the British and their traditions but I am against imperialism. We didn’t lower the union jack physically only for us to raise it ‘proudly’ in our hearts fifty years after independence.  We should be proud of being Africans and uphold our traditions to such a level as to make other cultures green with envy.

How can we undergo a cultural revolution if all our ways are still imperial? We take pride in drinking ‘foreign coffee’; paying a fortune for a cup of espresso and cappuccino and ignoring our own Ketepa. We eat American hamburgers, pizza and Harland Sanders’ Kentucky Fried Chicken as a mark of class and affluence and look down upon our own ‘ingokho’ and ‘managu’. We are excited and glued to Mexican telenovelas at the expense of ‘Papa Shirandula’ and ‘Beba Beba’ and listen to Jay-Z’s “Magna Carta” and distance ourselves from Jacob Luseno’s ‘mukangala’ since it will brand us as uncultured and out of ‘class and style’. We fake our accidents just to sound upmarket and an American twang here and a London cockney there is a grand chance to show how well travelled we are. To put emphasis on Ngugi wa Thiong’o’s words, “English is not an African language”.

We seek to be a middle income nation by 2030 and this does not come on a silver platter. We must have our own culture, traditions and customs. Being awed at a ‘royal couple’ in the 21st century is totally uncalled for. China underwent its cultural revolution in the 1950s to be where it is today. We must take charge of our future and culture for us to be where we want to be. When the Americans on December 16, 1773 threw chests of tea off a ship bound for England in the famous ‘Boston Tea Party’, they did so to do away with imperialism for good. They have even had to tamper with the ‘King’s/Queen’s language’ to bring on board ‘honor’, ‘fall’ for autumn, restrooms etc. to prove their dislike for ‘royalty’. We ought to create a Kenyan identity for us to call ourselves Kenyans.

To all those still celebrating the birth of a ‘royal child’, Mark Twain’s words in “Letters from a Dog to Another Explaining and Accounting for Man” are sufficient to express my angst. “A royal ‘right’ stolen five hundred years ago is called a ‘divine’ right to-day. God himself is made a conspirator, an accessory to the left”. I am proud of being Kenyan and African and royal in my own right.

 

 

How to Write About Africa- Binyavanga Wainaina

 

Image Binyavanga Wainaina

 

Always use the word ‘Africa’ or ‘Darkness’ or ‘Safari’ in your title. Subtitles may include the words ‘Zanzibar’, ‘Masai’, ‘Zulu’, ‘Zambezi’, ‘Congo’, ‘Nile’, ‘Big’, ‘Sky’, ‘Shadow’, ‘Drum’, ‘Sun’ or ‘Bygone’. Also useful are words such as ‘Guerrillas’, ‘Timeless’, ‘Primordial’ and ‘Tribal’. Note that ‘People’ means Africans who are not black, while ‘The People’ means black Africans.

Never have a picture of a well-adjusted African on the cover of your book, or in it, unless that African has won the Nobel Prize. An AK-47, prominent ribs, naked breasts: use these. If you must include an African, make sure you get one in Masai or Zulu or Dogon dress.

 

In your text, treat Africa as if it were one country. It is hot and dusty with rolling grasslands and huge herds of animals and tall, thin people who are starving. Or it is hot and steamy with very short people who eat primates. Don’t get bogged down with precise descriptions. Africa is big: fifty-four countries, 900 million people who are too busy starving and dying and warring and emigrating to read your book. The continent is full of deserts, jungles, highlands, savannahs and many other things, but your reader doesn’t care about all that, so keep your descriptions romantic and evocative and unparticular.

 

Make sure you show how Africans have music and rhythm deep in their souls, and eat things no other humans eat. Do not mention rice and beef and wheat; monkey-brain is an African’s cuisine of choice, along with goat, snake, worms and grubs and all manner of game meat. Make sure you show that you are able to eat such food without flinching, and describe how you learn to enjoy it—because you care.

 

Taboo subjects: ordinary domestic scenes, love between Africans (unless a death is involved), references to African writers or intellectuals, mention of school-going children who are not suffering from yaws or Ebola fever or female genital mutilation.

 

Throughout the book, adopt a sotto voice, in conspiracy with the reader, and a sad I-expected-so-much tone. Establish early on that your liberalism is impeccable, and mention near the beginning how much you love Africa, how you fell in love with the place and can’t live without her. Africa is the only continent you can love—take advantage of this. If you are a man, thrust yourself into her warm virgin forests. If you are a woman, treat Africa as a man who wears a bush jacket and disappears off into the sunset. Africa is to be pitied, worshipped or dominated. Whichever angle you take, be sure to leave the strong impression that without your intervention and your important book, Africa is doomed.

 

Your African characters may include naked warriors, loyal servants, diviners and seers, ancient wise men living in hermitic splendour. Or corrupt politicians, inept polygamous travel-guides, and prostitutes you have slept with. The Loyal Servant always behaves like a seven-year-old and needs a firm hand; he is scared of snakes, good with children, and always involving you in his complex domestic dramas. The Ancient Wise Man always comes from a noble tribe (not the money-grubbing tribes like the Gikuyu, the Igbo or the Shona). He has rheumy eyes and is close to the Earth. The Modern African is a fat man who steals and works in the visa office, refusing to give work permits to qualified Westerners who really care about Africa. He is an enemy of development, always using his government job to make it difficult for pragmatic and good-hearted expats to set up NGOs or Legal Conservation Areas. Or he is an Oxford-educated intellectual turned serial-killing politician in a Savile Row suit. He is a cannibal who likes Cristal champagne, and his mother is a rich witch-doctor who really runs the country.

 

Among your characters you must always include The Starving African, who wanders the refugee camp nearly naked, and waits for the benevolence of the West. Her children have flies on their eyelids and pot bellies, and her breasts are flat and empty. She must look utterly helpless. She can have no past, no history; such diversions ruin the dramatic moment. Moans are good. She must never say anything about herself in the dialogue except to speak of her (unspeakable) suffering. Also be sure to include a warm and motherly woman who has a rolling laugh and who is concerned for your well-being. Just call her Mama. Her children are all delinquent. These characters should buzz around your main hero, making him look good. Your hero can teach them, bathe them, feed them; he carries lots of babies and has seen Death. Your hero is you (if reportage), or a beautiful, tragic international celebrity/aristocrat who now cares for animals (if fiction).

 

Bad Western characters may include children of Tory cabinet ministers, Afrikaners, employees of the World Bank. When talking about exploitation by foreigners mention the Chinese and Indian traders. Blame the West for Africa’s situation. But do not be too specific.

 

Broad brushstrokes throughout are good. Avoid having the African characters laugh, or struggle to educate their kids, or just make do in mundane circumstances. Have them illuminate something about Europe or America in Africa. African characters should be colourful, exotic, larger than life—but empty inside, with no dialogue, no conflicts or resolutions in their stories, no depth or quirks to confuse the cause.

 

Describe, in detail, naked breasts (young, old, conservative, recently raped, big, small) or mutilated genitals, or enhanced genitals. Or any kind of genitals. And dead bodies. Or, better, naked dead bodies. And especially rotting naked dead bodies. Remember, any work you submit in which people look filthy and miserable will be referred to as the ‘real Africa’, and you want that on your dust jacket. Do not feel queasy about this: you are trying to help them to get aid from the West. The biggest taboo in writing about Africa is to describe or show dead or suffering white people.

 

Animals, on the other hand, must be treated as well rounded, complex characters. They speak (or grunt while tossing their manes proudly) and have names, ambitions and desires. They also have family values: see how lions teach their children? Elephants are caring, and are good feminists or dignified patriarchs. So are gorillas. Never, ever say anything negative about an elephant or a gorilla. Elephants may attack people’s property, destroy their crops, and even kill them. Always take the side of the elephant. Big cats have public-school accents. Hyenas are fair game and have vaguely Middle Eastern accents. Any short Africans who live in the jungle or desert may be portrayed with good humour (unless they are in conflict with an elephant or chimpanzee or gorilla, in which case they are pure evil).

 

After celebrity activists and aid workers, conservationists are Africa’s most important people. Do not offend them. You need them to invite you to their 30,000-acre game ranch or ‘conservation area’, and this is the only way you will get to interview the celebrity activist. Often a book cover with a heroic-looking conservationist on it works magic for sales. Anybody white, tanned and wearing khaki who once had a pet antelope or a farm is a conservationist, one who is preserving Africa’s rich heritage. When interviewing him or her, do not ask how much funding they have; do not ask how much money they make off their game. Never ask how much they pay their employees.

 

Readers will be put off if you don’t mention the light in Africa. And sunsets, the African sunset is a must. It is always big and red. There is always a big sky. Wide empty spaces and game are critical—Africa is the Land of Wide Empty Spaces. When writing about the plight of flora and fauna, make sure you mention that Africa is overpopulated. When your main character is in a desert or jungle living with indigenous peoples (anybody short) it is okay to mention that Africa has been severely depopulated by Aids and War (use caps).

 

You’ll also need a nightclub called Tropicana, where mercenaries, evil nouveau riche Africans and prostitutes and guerrillas and expats hang out.

 

Always end your book with Nelson Mandela saying something about rainbows or renaissances. Because you care. ■

CREATING THE FUTURE WE WANT

Future begins with the vision we hold now. What kind of future do you wish to create for yourself and the world? Please share your dream and ideas for making it a reality.

Okay, This is an essay I submitted to the 2012 Goi Peace Foundation and UNESCO International Essay Contest for Young People and I believe the ideas herein are worth sharing with you.

A PACIFIED, EDUCATED AND GREEN FUTURE”
Take a mental flight to 2150 C.E. You are promenading across the French City of Paris. The Louvre Museum is in ruins, half the height of the Eiffel Tower has been blown away following a resurgence of a world war and the Notre Dame Cathedral is no more. On the other hand, take a mental flight to the Democratic Republic of Congo in 2150 C.E. The Civil war is over, homes all over the country are being lit by power from green energy sources, every home is supplied with clean water, the youth, women and the girl children are given equal opportunities in education and leadership, the jungle is teeming with wildlife including the presently endangered mountain gorilla and the Foreign Policy magazine has declared it the most peaceful and prosperous country on Earth. I guess we would all wish to live in that Congo instead of Paris. That world is possible if we choose to create it today. This is how we can:

Global climate change conferences are very emotive whenever held. We are living in a world where the hazards of climate change are as sure as death, all this as a result of pollution. We can evade the ravages of climate change if we only become pragmatic enough and adopt green energy solutions. An education that will encourage the development and take up of wind, hydro and solar energy in place of fossil fuel will create a pollution-free future. Wind farmWe can create such a future if we resolve to establish wind energy farms, use public means of transport in place of personal vehicles in our cities where traffic gridlock not only wastes productive time but also increases the levels of carbon emission, resolve to plant more trees and save surviving forests by reading our books, magazines and newspapers on electronic media in place of paper.

peacePeace and tranquility are a recipe for a harmonious world; a world where I will be able to walk through the volatile streets of the cities in Afghanistan or Iraq without a bullet-proof vest or armoured vehicle. Pessimists may dismiss this but it is possible if we preach tolerance and harmony and fill the chasms that separate us with love where hatred and bigotry is preached, olive branches where guns are raised against us and knowledge where ignorance is feigned. We can create that world if we learn to appreciate the beliefs of the neighbour next door and instead of demonizing each other, take each other as the children of one God whether Hindu, Christian, and Muslim or Buddhist by embracing a spirit of fraternity and camaraderie.

A world that forgets its past has no future because the past is a mirror to reflect upon and unlearn our mistakes and improve on our achievements, to create a lustrous tomorrow. It is therefore imperative that we preserve our heritage and create a world where the Pyramids of Giza are preserved, the Pagodas of Beijing’s Forbidden City are left intact and the ruins of the Aztec temples are not desecrated.
Pagoda
If we control our hunger for modernization and adopt legislative measures that will protect these sites, we will be able to leave for the posterity a piece of our history. Modernization without regard for the past has played a negative role in the destruction of these sites. Old is gold and the only way of preserving this ‘gold’ is by allowing modernity to live side by side with antiquity where these sites are preserved and at the same time allowing modern development.

Education, poverty and corruption are like three sides of the same coin. They are intertwined in the sense that a lack of education often leads to poverty and corruption is often the source of poverty and vice versa. Religious, racial and ethnic bigots often take advantage of poverty and little education to dogmatize their followers into violence. It is therefore through education that we can overcome poverty and create responsible citizenry. A world where education is free and available to all can be possible if the spending on military advances by countries can be diverted into peaceful ventures such as provision of education. An education where learners will be taught and cultured to appreciate hard work and earning an honest living instead of looting public coffers will go a great length in reducing corruption. Where corruption is reduced, funds will be available to fund education, provide venture capital for young entrepreneurs, and develop the poor areas of the world with provision of electricity, roads and provision of clean water sources. A world without poverty will lead to better living standards, an educated population, reduced mortality rates, reduced violence and cities without slums.
That is the world I want to create for the posterity.

IGNORANCE AND STEREOTYPES

I love comedy…

I am a great fan of Russell Peters and I pretty much love the way he makes fun of his Indian parents and their clumsiness. Russell Peters is one guy whose comedy heavily relies on racial and ethnic stereotypes. I am not against such stereotypes but one thing that I loathe about stereotypes is that they rely a lot on ignorance. People will talk ill of the Chinese because of the ignorant facts that they have about them. As Chimamanda Ngozi Adichie puts it, it is a ‘danger of a single story’.

This brings into mind the stereotypes that Americans have about the rest of the world. It is true that Americans are way ahead of many in terms of technological advancement but it must be remembered that Americans are one ignorant bunch of people. When Sarah Palin gaffes and says that Africa is a country, we should not jump quickly into conclusions to accuse her of being a ‘blonde’ whatever the meaning this word has acquired but we should appreciate that the background she grew up in Alaska made her to have a very claustrophobic world view where everything is American over and over.

Here is a satirical world map that best extrapolates the American ignorance. SubSaharan Africa is an AIDS ravaged country and dirty porn is manufactured in Germany. China is one big supermarket and Spain and Portugal are Mexico and Brazil respectively. Now that is what I call the epitome of ignorance and it is what forms the main fodder for stereotypes.

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