Civilised societies must allow for space to disagree


Divergent is a 2014 Hollywood science fiction action film directed by Neil Burger that takes place in a world divided by factions based on virtues. The film is based on a novel by Veronica Roth.

In the film, a futuristic society is divided into five factions: Abnegation (the selfless), Amity (the peaceful), Candor (the honest), Dauntless (the brave), and Erudite (the intelligent).

Every year, 16-year-olds undergo an aptitude test that indicates the faction into which they would best fit and informs their choice at the Choosing Ceremony. If the test indicates that you belong to more than one faction, then you are Divergent.

Divergents, as they are called, are independent-minded people who think differently. The government cannot control them and they are considered a threat to the existing social order. They are nonconformists.

Nonconformists, or free thinkers, have always been looked at with suspicion. People who think differently are either rebels or geniuses, who disturb the box within which the system, society and culture operate.

Nonconformists are agents of change who see in a different way, from Socrates to Einstein, from Aristotle to Augustine, from Mozart to Robert Schuman, from Romero to Mandela. All these have been nonconformists, and sometimes they were the target of laughter and ridicule.

Nonconformists have sharp and critical minds. Their deep grasp of freedom and truth leads them to discover the beauty of innovation, challenging the status quo. They can be destructive if they deviate from truth or great if they live by it, for if you do not live the way you think, you end up thinking the way you live, which is mediocrity.

The Constitution of Kenya protects the right to be publicly divergent in Article 33 and Article 34. These articles guarantee freedom of expression and freedom of the media.

Article 34 guarantees the freedom and independence of electronic, print and all other types of media. It also prevents the State from exercising control over or interfering with any person engaged in broadcasting, producing or circulating any publication, or disseminating information by any medium.

It further prevents the State from penalising any person for any opinion or view, or the content of any broadcast, publication or dissemination.


Article 33 limits this general freedom of expression, which does not extend to propaganda for war, incitement to violence, hate speech or advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm or is based on any ground of discrimination.

How can these prohibitions be turned into law without jeopardising rights? This is where the drafters of the Security Amendment Laws failed. They should have looked at the Constitution more keenly.

Article 34 clearly says that Parliament shall enact legislation that provides for the establishment of a body which shall be independent of control by government, political interests or commercial interests, reflects the interests of all Sections of society, sets media standards and regulates and monitors compliance with those standards.

The drafters of the Security Amendment Laws took a short cut and made two errors. First, they disregarded the relevance of media standards. Second, they placed the responsibility of regulating and monitoring compliance on a government controlled body: the National Police Service.

While the new Security Act might make sense from a security point of view, it was, regrettably, rashly drafted.


The right to be divergent is not a recent invention. Already, in a 2004 case, the courts had protected it. The High Court held in the case of Rev Dr. Jesse Kamau & Others vs. The Attorney General that the Constitution is the solid foundation of democracy and the rule of law, and it should not be crippled by the courts. The Court said:

“The provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail.  Restrictions on fundamental rights must be strictly construed.”

Justice Odunga cited this case in his decision to suspend eight clauses of the recently passed Security (Amendment) Laws Act. Justice Odunga expounded his arguments by quoting a beautiful decision of the Supreme Court of India, which said:

“Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides breeding ground for terrorism. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful to the human rights.”

The Supreme Court of India got it right. Terrorism thrives where human rights are violated. Fighting terrorism with hurriedly drafted laws is not the solution. It can actually turn the tide against the police and the State itself.


Times have changed. The media has become an uncontrollable beast. We are witnessing the birth of a new generation. In this #hashtag generation, thoughts and feelings are given free reign. There is nothing hidden; all seems authentic, whether good or bad.

Control and filtering of the press by police makes no sense anymore. Social media has turned mass media into the instant expression of people’s thoughts and feelings. Today, real control is far more complicated. It is to be found in the conscience of each individual.

No matter what generation one belongs to, there will always be a percentage of the population that thinks differently, a percentage of divergents. Every civilised society must allow for that free and sacred space to disagree, always respecting each other.

Nonconformists changed society, changed the world, challenged themselves and inspired others to jump higher and further. Our world, if it were not for nonconformists, would remain mediocre.

Dr Franceschi is the dean of Strathmore Law School., Twitter:@lgfranceschi



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