Work in Progress A study prepared for the regional expert meeting on Article 20,
Organized by the Office of the High Commissioner for Human Rights,
Nairobi, April 6-7, 2011
Presented by Henry Maina, Director, ARTICLE 19 Eastern Africa1
Many interlocutors have asserted that advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, prohibited by Article 20 of the International Covenant on Civil and Political Rights (“ICCPR”) often precedes mass atrocities like genocide, mass displacements and war. Consequently, some argue that there should be more restrictions levied on some speech and freedom of media at particular social milieu in order to prevent such atrocities. However, other commentators argue that not all hateful speech reaches the level of prohibited hate speech and a clear threshold must be developed2.
The issues of what type of and when speech may constitute an incitement prohibited by Article 20 of the ICCPR are still unclear and problematic and a further elaboration of the ICCPR standards needs to be developed. Courts, both at the domestic and international levels, including those in Africa, have grappled with these issues with mixed outcomes. At the domestic levels, countries have not been able to develop clear definition in their disparate bodies of laws. Similarly, domestic courts have not given any consistent interpretation of what may be constitutive components of speech categorised as “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Some law enforcement agencies also tend to brand any political speech they do not agree with as geared at incitement to hatred.
This paper looks at the how the concept of hate speech has been formulated and applied in some disparate domestic laws and jurisprudence in some Africa countries.
RELEVANT INTERNATIONAL STANDARDS AND PRINCIPLES
The principle of substantive equality among human beings, including the right to freedom from discrimination, is at the heart of human rights, as highlighted by article 1 of the Universal Declaration on Human Rights (UDHR), adopted by the UN General Assembly in 1948, which states: “All human beings are born free and equal in dignity and rights.” The principle applies to everyone in relation to all human rights and freedoms. It prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race, colour and so on, as per article 2 of the UDHR. Article 2 provides for equal enjoyment of the rights and freedoms therein proclaimed, “without distinction of any kind, such as race, colour, sex …”
While the UDHR does not specifically provide for prohibitions on hate speech or incitement to hatred, its Article 19 guarantees everyone the right to “seek, receive and impart” both “information and ideas”, through “any media and regardless of frontiers.” This right to freedom of expression is fundamental thus to human rights protection. The importance of freedom of expression was highlighted as early as 1946, when at its very first session, the UN General Assembly adopted Resolution 59(I) which states: “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.” The International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1976, guarantees equality and non-discrimination in the enjoyment of rights in terms similar to the UDHR. Article 19 of the ICCPR guarantees the right to freedom of expression in terms similar to the UDHR. It gives absolute protection to the right to hold opinions, and protects the right to seek, receive and impart information and ideas. It allows restrictions on these rights only where these are a) provided by law; b) for the protection of one of the aims listed; and c) necessary to protect that aim.
With regard to point b, Courts variously refer to ‘public order’ or the ‘rights of others’ as possible legitimate aims when considering challenges to hate speech laws, with ‘equality’ or ‘non-discrimination’ presented as examples of the rights of others.
The ICCPR does place an obligation on States Parties to prohibit hate speech. Article 20(2) provides that:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. This provision employs a double-barrelled formulation, whereby what is to be prohibited is advocacy of hatred that “constitutes” incitement rather than simply incitement. The UN Human Rights Committee (HRC), the body of experts tasked with interpreting the ICCPR, has specifically stated that Article 20(2) is compatible with Article 19.3 International Convention on the Elimination of All forms of Racial Discrimination (ICERD) in Article 4 (a) calls upon states to ban a much broader range of speech and action than the ICCPR:
[State Parties] “[S]hall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof.”4
Another international instrument that outlaws incitement to genocide is the Convention on the Prevention and Punishment of the Crime of Genocide.5
“INCITEMENT” IN AFRICA: BRIEF COMPARATIVE VIEW
The African Charter on Human and Peoples’ Rights (“the African Charter”) provides for non-discrimination in the enjoyment of rights, respectively in Article 2, 19 and 28 among others. Article 28 states inter alia “every individual shall have the duty to respect and consider fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.” Freedom of expression and freedom of information are guaranteed in Article 9 of the African Charter. There are no similar provisions on incitement in the African Charter similar to those in Article 20 of the ICCPR.
African laws and jurisprudence related to incitement may be best characterised as:
A patchwork: there are significant variations across countries in how prohibition and threshold of incitement is approached and defined in laws and regulations, and in how these concepts are applied;
Uneven and inconsistent: The patchwork’s variations generate significant inconsistencies and approach both across the region and even within countries.
In domestic jurisprudence, the interpretation and legal reasoning deployed often appears vague, ad hoc and possibly lacking in conceptual discipline or rigour.
When examining the legal framework on incitement in Africa, the following factors also need to be considered:
Historical contexts of the incitement related regulations: Many countries in the region share a similar history of colonialism and white supremacy (and the apartheid regime in South Africa) during which large scale violations of human rights occurred. These regimes were characterized by the policy of “divide” which was aimed at ensuring white hegemony and dividing population along racial and ethnic lines. The legacy of these violations still persists in the region and is often manifested in deep divides in the societies, especially in the Southern African region. These definitions of class and ethnicity played roles in ethnic conflicts, including the 1994 genocide in Rwanda. Moreover, during the colonial and apartheid time, the calls for national liberation or against white oppression were prosecuted under incitement laws. For example, in South Africa, the laws prohibiting racial hostility were, according to available information, only applied against anti-apartheid opponents of the government. A large number of laws still on the book in many African countries, including those related to incitement to hatred, or those regulating the media, dates back to colonial regimes and thus to political regimes that had enshrined racism as a core value (e.g. Zimbabwe). Even if the laws in question are not used, their continuing existence is highly problematic at many levels.
Consequences of incitement in many Africa countries:Incitement to violence or hatred, including by politicians, community leaders or journalists, has actually resulted in massive violence and mass killings in many countries across the continent. Rwanda presents the most extreme examples of how the relationship between a government, the media and politics can go horribly wrong. But throughout the continent, there are sporadic instances of alleged incitement resulting in massive violence, such as in Kenya, Ivory Coast, Uganda, Burundi, Nigeria, etc. Unfortunately, the jurisprudence on incitement cases remains very limited, with the exception of South Africa. Many charges of incitement have never been actually investigated or pursued to the end in a court of law.
Lack of conceptual clarity and jurisprudence: The International Tribunal for Rwanda has played an important normative function but this did not extend to articulating an interpretation of Article 20 proper. The tribunal focused on genocide and incitement to genocide. In fact, it did not effectively define incitement to genocide.6 In the Prosecutor v. Nahimana, Barayagwiza and Ngeze, three individuals alleged to have been the masterminds behind a media campaign to desensitize the Hutu population and incite them to murder the Tutsi population in Rwanda in 1994 were prosecuted. Ferdinand Nahimana and Jean-Bosco Barayagwiza were both influential members of the “Comitéd’Initiative” (the Steering Committee), which founded Radio Télévision Libre des Mille Collines (“RTLM”). Hassan Ngeze was the owner, founder and editor of the Kangura newsletter, which was published from 1990-1995 and was widely read across Rwanda. On 3 December 2003, the Trial Chamber of the International tribunal for Rwanda found all three defendants guilty of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide and persecution and extermination as crimes against humanity. On appeal, the Appeals Chamber held that RTLM broadcasts between 1 January and 6 April 1994 did not constitute a direct and public incitement to commit genocide, but that certain emissions after 6 April 1994 did. It also acquitted Barayagwiza of the charge of incitement, on the ground that he did not exercise effective control over RTLM journalists after 6 April.
Grounds for protection: Given the multiple identities citizens in most countries in Africa exhibit, there is utter need to evolve the laws and initiatives dealing with incitement, discrimination and inequality to recognise other identities and possible grounds for hatred besides race and religion. Some of these identities may include national origin, ethnicity, sexual identities, immigrants etc.
These findings are very similar to the findings of a comparative review undertaken by ARTICLE 19 of European laws and jurisprudence regarding incitement7.