Blog Details

Katiba Institute Article

What really is hate speech? The weakness in law

What really is hate speech? The weakness in law

As we head towards August 9 elections, hate speech is liable to become a genuinely important issue, as recent headlines have shown.

Here I want to raise a few questions about it, and try to answer them.  We shall end with a question about freedom of speech and hate speech.

IS HATE SPEECH JUST ABOUT PEOPLE SAYING THEY HATE OTHERS?

“I hate you, I hate you, I hate you!”  The sort of thing that a child in a tantrum might well say. And sometimes, unfortunately, an adult in an adult relationship might do the same with possibly more serious consequences.

In the latter case, it might be part of grounds for divorce (cruelty?) but it is not legally “hate speech”. There is an old English saying: “Sticks and stones may break my bones, but words can never hurt me”. Words that hurt feelings are not legally hate speech.

The basic idea of having law against hate speech is that words may have serious consequences. In Europe, this was brought home by the 20 Century persecution of the Jews in Germany (by the way there had been much persecution of the Jews in other countries over the centuries).

People realised how dangerous it could be, if not only government but the people were stirred up to violent hatred.  And, in Africa, Rwanda’s 1994 [Genocide] also brought this home.

So hate speech is about somebody advocating hatred of others.

TO BE GUILTY, DO YOU HAVE TO PERSUADE OTHERS TO BE VIOLENT OR TAKE OTHER ACTION OR JUST TO HATE?

The only Kenyan law creating a crime of hate speech is the National Cohesion and Integration Act.

It is about conveying messages: Using words (in speaking) or displaying or distributing written material, presenting a play, or showing or distributing a film or image or producing a programme (perhaps means a radio programme). And the message must be “threatening, abusive or insulting”.

Imagine a supposedly scientific paper or lecture that sets out in calm, neutral language — no abuse, threats or insults — arguments for treating certain classes of people differently. Is this not hate speech? A difficult question.

But more is needed to amount to a crime. This Act — remember the only one creating a crime of hate speech — is only about insults and abuse of an “ethnic” nature. This means about colour, race, nationality or ethnic or national origins.

And finally – on the question of what the person is persuading others to do – the Act says that to be guilty, the person must intend to stir up ethnic hatred. So they do not have to have tried to persuade people to be violent.

This has been a topic of much controversy in various countries: Should a crime of hate speech only be committed by someone who encourages violence, or is encouraging hatred enough?

But hatred, even without violence, could lead to exclusion – against our Constitution.

IS IT JUST COMMITTED BY POLITICIANS?

Clearly, no. In fact, it would probably be unconstitutional to have a crime that could be committed only by a particular section of society.  But the biggest risks are connected to politics and especially elections. Politicians themselves should be aware of the sensitivities and particularly cautious about their utterances about other groups in society.

You may be asking ,“Is hate speech only about race and tribe? How about gender, religion, disability?” And “Is creating a crime the only solution?”  The answer to each is no.

On the second, there are other ways — apart from creating a crime — to try to stop hate speech through law. It is a disciplinary offence for the police or NYS members to “commit” hate speech.

The Media Council Code of Conduct includes bans on “quoting persons making derogatory remarks based on ethnicity, race, creed, colour and sex”. (Note – sex and creed (belief) appear but not disability.)

The Electoral Code of Conduct requires everyone involved in elections to avoid hate speech.  And the values and principles of basic education include the elimination of hate speech.

We come back to the first question when talking about the Constitution.

FREEDOM OF EXPRESSION

There are two articles in the Constitution about freedom of expression. Many people will know about this idea and how important it is. The whole concept is a response to governments’ efforts to keep people’s mouths shut. And protecting freedom of expression was a crucial element in the development of democracy. Some people trace the whole idea back 2,500 years to the ancient Greeks.

Government will not improve unless people are able to express criticism of it. Yet government that fears criticism will want to suppress that criticism. Kenya’s own history is evidence of that – both in the colonial period and since. How many people have been punished because of what they have said about government?

Some people think this is the most important human right. And like several other fundamental rights, its importance is at least as connected to the interests of society as it is to the rights of the individual.

But by the time the 2010 Constitution was drafted, there was a particular awareness of the risks of certain types of speech. And the post-election violence of 2007-08 had brought this home very forcefully.

Generally it is clear in the Constitution that rights can be limited by law. That limitation must be to achieve a public good that is justified in a democratic anxiety. And the limit must be appropriate to the objective to be served, and must limit the right no more than necessary. All this is a general principle (Article 24).

But hate speech is treated differently.

Article 33 of the Constitution protects the right to freedom of expression. But it goes on to say that this does not cover various objectionable types of expression. Some of these were copied from the South African Constitution. These include propaganda for war, and incitement to violence, and advocacy of hatred.

The last under the Kenyan constitution includes advocating hatred based on any of the grounds listed in Article 27 (so including religion, sex, pregnancy, disability, and health status for example).

In addition, the Kenyan Constitution for some reason includes “hate speech” as something separate that is not protected by the freedom of expression.  This is not in the South African Constitution and was mysteriously introduced by the Committee of Experts.  It does not help. What is hate speech?  How does it differ from the general provision about advocacy of hatred? It just muddies the waters.

Many people – including some lawyers – seem to think that this part of Article 33 creates crimes or forbids hate speech etc. But it does not.  It simply says that if a law prohibits hate speech or advocacy of hatred no-one can say “this violates by freedom of speech so is unconstitutional”.  So the laws I just mentioned about hate speech and advocacy of hatred cannot be attacked on that ground.

It is particularly interesting that Article 33 essentially says – if not in so many words  – “if Parliament choses to pass a law that forbids hate speech specifically in connection with advocating that people hate others of a particular gender, religion, political opinion, being HIV  (or Covid-19) positive, being pregnant, having a disability, that limit on rights cannot be questioned on the basis that it limits human rights.

Kenyan law on “hate speech” is a bit of a mess – including because of using this vague expression. It does not fully cover all the types of calls to hatred that the Constitution allows the law to deal with.

Meanwhile politicians get picked up by the police periodically, prosecuted, probably held in pcells for a few rights but rarely convicted. Indeed the main punishment seems to be this, not being convicted and sentenced.

Perhaps we need a thorough review of the law, including deciding what we really want to achieve by it, while avoiding giving power to the authority to attack freedom of expression unjustifiably.

By JILL COTTRELL GHAI, Director Katiba Institute

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2022-01-16-jill-ghai-what-really-is-hate-speech-the-weakness-in-law/