The proprietors of Business Bay Square (BBS Mall), situated in Eastleigh, have escalated the already heated political controversy by officially filing a complaint with the National Cohesion and Integration Commission (NCIC) against the erstwhile Deputy President Rigathi Gachagua.
They have accused him of defamation and hate speech in connection with his public statements that the mall was a part of the money and an international fraud case, linking it to a major fraud scandal.
The complaint, which was lodged through the MMA Advocates LLP, contends that Gachagua’s remarks—made during a church service in Kiratina, Kiambu County, on January 4—straightforwardly pointed out that money, which was part of the fraud case in Minnesota, United States, was quietly moved to Kenya and used to build commercial properties, which included BBS Mall.
Gachagua did not specifically mention the mall, but the legal petition asserts that any person listening to the remarks with a reasonable mind would draw the inference of criminal conduct to businesses in Eastleigh that can be identified and, in turn, to the Somali community.
This supposedly defamatory story “undermines lawful enterprises,” the letter says, “damages commercial reputation,” and “violates the constitutional protections against hate speech and ethnic contempt.”
The attorneys of the mall’s owners drew upon Articles 27, 28, and 33 of the Constitution, which guarantee equality, dignity, and freedom from hate speech, as well as Section 13 of the National Cohesion and Integration Act, which makes it an offense to use any language that is abusive or inflammatory in order to provoke ethnic hostility.
The petition calls on NCIC not only to investigate and reprimand Gachagua but also to recommend that he be prosecuted if statutory criteria are satisfied.
Moreover, the complaint urges the commission to alert the media to the danger of repeating or amplifying the ex-DP’s allegations.
They are advised that such coverage could escalate the conflicts of the races and negatively affect the investors’ readiness to trust and the businesses’ productivity in the already existing licensed areas in the country.
The legal suit is a result of the earlier calls made by some legislators, notably Eldas MP Adan Keynan, who criticized Gachagua’s remarks as “irresponsible” and “dangerous” and thus urged for a public apology and retraction to avoid further dividing the communities.
The NCIC has not yet acknowledged the complaint, but this action has put the argument in the midst of the national discourse concerning the meaning of political speech, the reputation of businesses, and the restrictions on public discourse by powerful people.
The complaint has now been lodged with the cohesion watchdog of Kenya, which is supposed to rule whether Gachagua’s comments fall under the category of unlawful hate speech—a measure that could usher in extensive legal as well as political ramifications.
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