SWM 2014: Legislating against and countering hate speech in East Africa
Case study by Laura A. Young
East Africa and the Horn has been one of the most volatile regions in the world in recent years. Several states have passed legislation that addresses hate speech, trying to clamp down on incitement to violence, but according to Article 19’s Director for Kenya and Eastern Africa, Henry Maina, these laws often end up punishing minorities instead of protecting them. He discusses some of the challenges in implementing these measures and urges a more holistic view in order to effectively address hate speech in the region.
How has legislation on hate speech in the region evolved over the past few years?
Most countries in the region are signatories to the International Covenant on Civil and Political Rights (ICCPR) which requires them to prohibit incitement to violence, hatred or discrimination. State understanding of this prohibition has simply been equated to criminalization, without understanding the effect that this could have. Most legal provisions in the region have been borrowed from ICCPR Articles 19 and 20, but they tend not to take a holistic approach. This can have negative effects on minority and indigenous groups who need the protection most. For example, Uganda and Rwanda have introduced aspects of sectarianism into their laws, a concept which is not well-defined. They make sectarianism equivalent to advocacy – any group of people that begins organizing and advocating for their rights is accused of sectarianism. Also, because these criminal laws often were written long ago, no one envisioned incitement based on linguistic minority status, gender or disability. For example, incitement against Asians in East Africa is rarely dealt with under these laws. In Kenya, we monitor only incitement related to the large ethnic groups, such as Luos, Kalenjin and Kikuyus, but no one is thinking that this is more than just about the politically powerful ethnic groups. There are many other grounds of discrimination that are not being looked at – the intersection of gender and ethnicity, for example.
Is legislation on hate speech and incitement used effectively to protect minority groups?
I can’t say so definitively. When you think through these processes, countries primarilysee their role as prohibiting incitement, but they do not see their obligation going beyond that; they don’t see the protection angle. This is because the very nature of these laws in the region, and everywhere, does not include a clear understanding of what hate speech is. Accordingly, it can be defined in the way that the state authorities want. It’s not effectively protecting the groups that are targeted by such dangerous speech. There is too high a risk of the state and majority groups joining hands in punishing so-called hate speech, then minority and indigenous groups suffer doubly.
Laws are necessary but they should be refined so as to deal with multiple grounds of incitement – it’s not just what the Convention on the Elimination of All Forms of Racial Discrimination (CERD) or the ICCPR says, but it needs to go beyond these instruments and develop more clarity in the East African context about what exactly constitutes incitement to violence, discrimination and, ultimately, incitement to genocide. Criminal law is not always the best solution – we can’t wait for these things to happen and then punish the perpetrators, because the results of incitement to genocide can never be repaired. At Article19 what we’ve done is to get involved with the Office of the High Commissioner for Human Rights (OHCHR) process on Article 20, so as to continually make the important links between opportunities for expression and stopping incitement and hate speech.
What role do you think the press and other institutions play in countering hate speech in relation to minority and indigenous groups?
Article 19 has developed a document called the Camden Principles where we clearly specified the role that different actors ought to play in a context that is susceptible to incitement. An example is that if two people were to fight here in Mathare (a slum in Nairobi), and these two persons happen to be of different ethnicities, there is a high likelihood that if the press reported the story of the fight, those ethnic groups would immediately be mobilized to revenge attacks. So under these principles the media is cautioned on when to ascribe ethnic identities or gender identities in their stories, unless it is critically necessary to the coverage, because of the high risk of incitement.
Other institutions also have important roles to play. In volatile contexts, there also need to be opportunities for people to be heard, especially minority groups, instead of speech being suppressed totally. We also need to think about what else needs to be done in schools, workplaces and other contexts that help us appreciate ‘the other’; this is not something that the law can necessarily do. The OHCHR has developed the Rabat Plan of Action, which goes beyond criminal law with other strategies. We need to work with the judiciary, schools, faith institutions and the private sector – all sectors of society.There needs to be an alliance between mainstream and marginalized groups to protect freedom of expression for all groups.
Along those lines, different United Nations mandate holders should all work together on freedom of expression as a cross-cutting issue. We must push intergovernmental and regional human rights bodies such as the African Commission, especially its Working Group on Indigenous Groups and Populations for example, to address freedom of expression as an issue that impacts minority and indigenous rights. Otherwise we end up punishing minority and indigenous groups for expression via the laws that were meant to protect them.
This article appears in MRG’s annual flagship report State of the World’s Minorities and Indigenous Peoples 2014. View the full report.
Photo: Men sit under tree shades in Karamoja, Uganda. Copyright: Minority Rights Group International