Kenyan rapper Kennedy Ombima (stage name, King Kaka) released a controversial song Wajinga Nyinyi a week ago. The song rebukes Kenyan voters for voting “foolishly” hence the title of the song which can be translated as “You Fools.”
King Kaka goes on to lament about what he understands to be the social woes in the country. These include tribalism, the education system, joblessness, corruption, failed projects and impunity. All these subjects seem to be pretty harmless. However, his undoing seems to be in the naming of some powerful individuals who have in the past been named in graft scandals. The song has earned him a lot of fame, but also exposed him to lawsuits individuals mentioned adversely.
Most people have been curious as to what the legal position is. Firstly, the rapper like any other citizen has the freedom of expression as set out in the Constitution. The law specifically provides for the freedom of artistic creativity which means that artistes can express their views on a wide range of subjects provided that they do not breach any other laws. Freedom of expression can include the written or spoken word, music and even visual expressions such that a graffiti artist would have a right to express himself though his artwork.
However, it is important to understand that the freedoms provided for in the Constitution contain limitations. For one the expression shall not contain propaganda for war, hate speech, incitement to violence, discrimination and shall also respect the right and reputation of others.
I will not go into analysing the content of the song and its impact on the above issues. But one of the individuals adversely mentioned in the song, states that her reputation has been injured and threatened to file a suit claiming damages for defamation.
In 2012 the late John DeMathew was charged with incitement to violence and hate speech when he released a song Year Of The Hyena. The National Cohesion and Integrated Commission negotiated an out-of-court settlement where the singer was to use his talent to promote unity. He was later acquitted.
Globally, Rwandese singer Simon Bikindi was sentenced to imprisonment by the International Criminal Court for incitement to genocide. He released songs that incited the militia interahamwe to commit genocide acts against minority Tutsi.
King Kaka’s song in my view does not contain hate speech but actually berates Kenyans for tribalism. It would be hard to sustain a case on hate speech against the singer.
The intended lawsuit is where the weakness in the singer’s case lies should the matter proceed. Everyone has a right to reputation. He will have to prove the truth of the statement and probably file a defence of “fair comment.”
Therefore singers must be careful that inasmuch as their songs speak against social ills that the same do not fall foul of the law.