By Osman Ali Hassan
The modern state of Kenya stands as one of East Africa’s most influential political and economic powers, yet beneath its constitutional promises lies a persistent contradiction: the uneven enforcement of laws designed to protect national cohesion. Among these, incitement and hate speech laws that administered through institutions like the National Cohesion and Integration Commission (NCIC) have often been presented as neutral guardians of unity. However, in practice, these laws appear to function selectively, wielding punitive force against marginalized individuals while hesitating, delaying, or softening their approach toward powerful political elites. This contradiction becomes sharply visible when comparing the treatment of high-ranking political figures such as Rigathi Gachagua and the recent arrest of Sahra Ahmed Bare, a Somali woman detained over alleged incitement.
At the heart of this debate is the legal framework itself. Kenya’s constitution guarantees freedom of expression, but this right is explicitly limited when speech crosses into hate speech, ethnic incitement, or propaganda for violence. Authorities have repeatedly emphasized that such expressions threaten national unity and can lead to prosecution. On paper, therefore, the law is clear and robust—what many describe metaphorically as having “teeth.” Yet the problem lies not in the law’s existence, but in its application. The “teeth” bite differently depending on who is speaking, where they stand in the hierarchy of power, and which community is implicated.
The case of Sahra Ahmed Bare illustrates the aggressive side of this legal enforcement. In April 2026, Kenyan authorities arrested and secured a 10-day custodial order against her over a viral video allegedly containing ethnic incitement. Investigators went as far as seeking access to her digital footprint as a call records, financial transactions, and social media activity to determine the scope and intent of her statements. The speed, depth, and intensity of this investigation reflect a state apparatus that can act decisively when it chooses to.
Sahra Ahmed, a relatively unknown figure without significant political backing, became a clear target of this enforcement machinery. Her case also highlights another dimension: identity. As a Somali woman in Kenya in a country with a long and complicated history of tension involving ethnic Somalis, she occupies a socially and politically vulnerable position. The Somali–Kenyan relationship has historically been shaped by conflict, suspicion, and security concerns, ranging from border disputes to counterterrorism operations. Within this context, speech attributed to individuals from Somali communities is often interpreted through a securitized lens, where suspicion can quickly escalate into legal action. This creates a double burden: not only is the individual judged for the content of their speech, but also through the prism of ethnic and geopolitical anxieties.
In stark contrast stands the case of Rigathi Gachagua, a prominent political leader whose public statements have, at times, been criticized for their divisive or ethnically charged tone. Unlike Sahra Ahmed, Gachagua operates within the protective shield of political power. His words carry far greater reach, influence, and potential impact on national cohesion. Yet responses to such rhetoric have often been slow, cautious, or diluted into political debate rather than legal accountability. This discrepancy raises a fundamental question: if the law is meant to prevent incitement, should it not apply more strictly to those whose voices have the greatest capacity to mobilize, polarize, or incite?
The answer reveals the structural imbalance embedded within Kenya’s political-legal system. Power influences enforcement. Political elites are not only lawmakers but also beneficiaries of the same system that is supposed to regulate them. Institutions tasked with enforcing incitement laws often operate under political pressure, whether explicit or implicit. Prosecuting a powerful politician risks political backlash, ethnic polarization, or even institutional retaliation. In contrast, targeting a private citizen, especially one from a marginalized community that carries fewer risks and can even serve as a public demonstration of action.
This selective enforcement creates the perception, and often the reality, of “cherry-picking the vulnerable.” The law is not blind; it is strategically applied. The consequences are profound. First, it undermines public trust in the justice system. When citizens observe that similar or even more severe statements by powerful figures go unpunished, while ordinary individuals face swift legal consequences, the legitimacy of the law erodes. Second, it reinforces existing inequalities. Marginalized communities, already facing social and economic challenges, become disproportionately targeted by legal enforcement, deepening their sense of exclusion and vulnerability. Third, and perhaps most dangerously, selective enforcement defeats the very purpose of incitement laws. These laws are designed to prevent violence, maintain cohesion, and protect vulnerable groups. However, when applied unevenly, they can exacerbate tensions rather than resolve them. Communities may interpret enforcement not as a neutral act of justice, but as a politically motivated tool. This perception can fuel resentment, mistrust, and even radicalization ironically increasing the risk of the very instability the laws aim to prevent.
The Sahra Ahmed case also raises critical questions about proportionality and due process. The extensive investigative measures—detention, digital surveillance, and forensic analysis—suggest a high level of state intervention. While such measures may be justified in cases of serious incitement, their application must be consistent across all cases. If similar scrutiny is not applied to statements made by powerful figures, then the issue is not the law itself, but the discretion exercised in its enforcement. Moreover, the role of media and public discourse cannot be ignored. Cases involving ordinary individuals often receive intense scrutiny and rapid dissemination, sometimes framing the accused as immediate threats to national unity. In contrast, statements by political elites are frequently contextualized, debated, or even normalized within political rhetoric. This disparity in framing further reinforces selective enforcement, shaping public perception in ways that justify unequal treatment.
The broader historical and political context of Kenya adds another layer to this analysis. As a multi-ethnic nation with over 40 ethnic groups, Kenya has long grappled with the challenge of maintaining national unity amidst diversity. Incitement laws emerged as a response to episodes of ethnic violence, particularly following contested elections. However, these laws operate within a political culture where ethnicity remains a central organizing principle. Political leaders often mobilize support along ethnic lines, making it difficult to separate political speech from ethnic rhetoric. In such an environment, enforcing incitement laws against political elites becomes not just a legal issue, but a political one. This political entanglement explains, though does not justify, the reluctance to hold powerful figures accountable. It also highlights the need for institutional independence.
For incitement laws to function effectively and fairly, enforcement bodies must be insulated from political influence. Without such independence, the law will continue to serve as a tool of convenience rather than a pillar of justice. The comparison between Gachagua and Sahra Ahmed ultimately exposes a deeper truth: the issue is not merely about two individuals, but about the nature of justice in Kenya. A system that punishes the weak while sparing the powerful cannot claim to uphold the rule of law. Instead, it reflects a hierarchy of accountability, where power determines vulnerability, and vulnerability determines exposure to punishment.
To address this imbalance, several reforms are necessary. First, there must be clear, transparent criteria for what constitutes incitement and how cases are prosecuted. Second, oversight mechanisms must be strengthened to ensure that enforcement agencies operate without political interference. Third, there must be equal application of the law, regardless of status, ethnicity, or political affiliation. Finally, public awareness and civic education should emphasize that incitement laws are not tools for silencing dissent, but safeguards for protecting society as a whole. Kenya’s incitement laws indeed have “teeth,” but those teeth do not bite equally.
The case of Sahra Ahmed demonstrates the law’s capacity for swift and decisive action, while the contrasting treatment of political figures like Rigathi Gachagua reveals its limitations and biases. This duality transforms the law from an instrument of justice into a mirror reflecting the inequalities of the society it serves. Until these inconsistencies are addressed, Kenya’s incitement laws will continue to operate not as a shield for unity, but as a selective weapon, one that disproportionately targets the vulnerable while sparing the powerful.
Osman Ali Hassan
Email: abayounis1968@gmail.com