Discriminatory speech in South Africa is not limited to race; it is also linked to xenophobic attacks. (GALLO IMAGES/AFP/PABALLO THEKISO)
“Hate speech lies in a complex nexus with freedom of expression; individual, group and minority rights; and concepts of dignity, equality and safety of person.” — United Nations Educational, Scientific and Cultural Organization report, 20151
Globally, there has been a resurgence of discriminatory and hateful speech in response to various social and political upheavals. While most democracies, such as South Africa and Kenya, provide for freedom of expression, they place limitations on this right to promote social cohesion and protect other fundamental rights – namely the right to equality and the right to dignity. The choice to criminalise speech that falls outside the bounds of protected speech is less widely applied. This is primarily because the use of criminal sanction to prevent hate speech is seen as being in direct contradiction to the freedom of expression and other rights. This is exacerbated by the fact that there is no agreed definition of “hate speech”.
This article reviews South Africa and Kenya’s attempts to curb hate speech through legislative means. In particular, the use of criminal sanction is examined, and the strengths and weaknesses of this approach are explored. This is done in the context of the South African government’s recent move to introduce legislation to criminalise hate speech, in response to racist speech outbursts on social media. In Kenya, with the upcoming elections in August, legislation is in place to mitigate politicians’ predilection for using hate speech as a campaign strategy, and to prevent the resurgence of electoral violence that has characterised Kenya’s elections in the past years.
Hate Speech in South Africa and Kenya
South Africa’s constitution protects the freedom of expression; however, it places a limitation on speech that “propagates for war; incites imminent violence; or advocates hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.2 This is in line with international law, particularly Article 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR).
Despite these constitutional provisions, racially prejudiced and other discriminatory speech has made freedom of expression a contested notion at times. The Reconciliation Barometer survey findings noted that strong distrust between racial groups still persists in South Africa.3 Social media platforms have been particularly hard hit by hate speech – for instance, in 2016, a social media post by realtor and private citizen, Penny Sparrow, sparked a wave of criticism for its racist content. In a Facebook post, Sparrow referred to black South African New Year’s Day beachgoers as “monkeys”, and used other derogatory language. The vitriolic post went viral and launched intense public discussions on hate speech and freedom of expression. Moreover, the post was not seen as an isolated incident, but as evidence of a nation still polarised along racial lines and supremacist beliefs – a legacy of the country’s apartheid past.4
The South African Department of Justice and Constitutional Development states that among the discriminatory speech cases reported, hate speech cases have been the most prevalent matters over the last 15 years.5 Research shows that many of these cases involve interpersonal exchanges of words between people, usually in the workplace and residential areas.6
Discriminatory speech in South Africa is not limited to race, however. Insults against those in the lesbian and gay communities and towards foreign nationals are also notable, and some political commentators link these to homophobic and xenophobic attacks. A few racially inciting and discriminatory statements have also been heard from political leaders, and sung at political gatherings. In the Afriforum vs Malema case7, former president of the African National Congress Youth League, Julius Malema, was found guilty of hate speech after he, on several occasions, sang verses from a South African liberation song, which contains words that translate to “shoot the Boers/farmers, they are rapists/robbers”. Malema was prohibited from singing the song at public or private events.
In Kenya, like South Africa, the right to freedom of expression is constitutionally protected, while placing limitations on speech that propagates war, violence, advocacy for hatred and incitement to cause harm, in line with Article 19 of the ICCPR. Hate speech, nevertheless, is a significant part of political culture. Political analysts observe that is has been used as a political tool since the establishment of a multiparty system in 1992, and has thus become the norm over many years. As a result of such divisive rhetoric, people are polarised by ethnicity. The violence that erupted during the 2007 election period left nearly 1 500 people dead and 600 000 displaced8 and is, in part, attributed to hate speech and divisive rhetoric. Apart from ethnic divisions, there have also been examples of hostile attitudes towards refugee and migrant populations in Kenya, spurning hate speech against these groups.
Legislative Remedies for Hate Speech in South Africa and Kenya
The main legislation dealing with hate speech in South Africa is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act), which deals specifically with the offence of hate speech and provides for remedies. Section 10 of the Equality Act prohibits the “publishing, propagating, advocating or communicating words with the ‘clear intention’ to be ‘hurtful’; be harmful or to incite harm; promote or propagate hatred”.9 The Act provides that every magistrate court may be an equality court. Unfortunately, the courts have been underutilised and public education on how to use the courts has been minimal.
The Equality Act, in its prohibition of hate speech, extends beyond the South African constitutional limitations on speech. For instance, the inclusion of “hurt” as a category is the subject of the current legal challenge, especially among freedom of expression civic organisations. Section 12 of the Equality Act further provides a public interest defence in a liability exemption. Apart from equality courts, the South African Human Rights Commission is also mandated to hear hate speech matters.
The Prevention of Hate Crimes and Hate Speech Bill (Hate Speech Bill) is now scheduled to come before the legislature this year (2017). Unlike the Equality Act, which makes criminal sanction discretionary only “as appropriate” through referral to the National Prosecuting Authority (NPA), the Hate Speech Bill – if passed – will introduce harsher penalties of up to 10 years for racist speech and other prejudicial speech, including insult and ridicule. The Bill will make racism and other forms of discrimination aggravating factors to crime. The Bill contains a clause in section (4)(b) that provides for the criminalisation of “any person who intentionally distributes or makes available an electronic communication which constitutes hate speech”10 – presumably in response to various prominent incidences of racist speech on online platforms.
In Kenya, the National Cohesion and Integration (NCI) Act of 2008 provides for prohibitions to speech. The government was prompted to put measures in place to correct a toxic political culture that is based on advocating for hatred within the citizenry.11 The NCI Commission has, for example, investigated online hate speech, which led to the arrest of six individuals who were known to be notorious for persistently disseminating inflammatory statements and spreading hate speech through social media. However, much like South Africa’s draft Hate Speech Bill, Kenya’s prohibitions are wide, and to an extent vague, and run the risk of infringing on freedom of expression. Section 13 of the NCI Act criminalises the use of hate speech and bars the use of threatening, abusive or insulting words or behaviour in any medium, if they are intended to spur ethnic hatred. An amendment to the NCI Act is underway – which, if passed, will increase penalties and extend the reach of the law to various social media platforms.
An obvious difference with Kenya’s NCI Act and South Africa’s Equality Act is that the NCI Act is more specific on prohibited journalistic and artistic conduct. The NCI Act is supported by the Penal Code of 2009, which defines hate speech as a subversive activity, intended or calculated to promote feelings of hatred and enmity between different races or communities in Kenya. Such speech calls for an imprisonment of up to seven years.
Media is pertinent when contemplating the subject of hate speech. Both South Africa and Kenya have media regulation mechanisms in place against hate speech. In South Africa, the Broadcasting Complaints Commission of South Africa (BCCSA) and the Code of Ethics and Conduct for South African Print and Online Media (Press Code) self-regulate on the prevention of hate speech in print, broadcast and online media. Section 5 of the Press Code commits media to avoid a wide list of discriminatory or denigratory references, except where it is strictly relevant to the matter reported and it is in the public interest to do so. In Kenya, the Media Council of Kenya, through the Media Council Act and Communications Authority established under the Kenya Information and Communications Act, provided for self-regulation as per Kenya’s 2000 Constitution. However, in recent years, the Kenyan government closed down the space for media self-regulation. In 2013, the government introduced amendments to the legislation, giving the state greater control over the media through co-regulation.
South Africa and Kenya are also signatories to other regional and international instruments. The African Charter on Human and Peoples’ Rights (African Charter) does not explicitly require hate speech to be prohibited by law. The Declaration of Principles on Freedom of Expression in Africa, adopted in 2002, is broad about the limits of free speech, as it simply provides that “any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society”.12 The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), however, provides for broader prohibition – including, in Article 4, the criminalisation of racially discriminatory speech. Given this international law framework, it is apparent that while states might set up the relevant domestic laws, implementation and framing of these laws is reliant on social context and the histories of these countries.
The ICCPR, of which both South and Kenya are signatories, sets out a three-part test for any limitations or sanctions on speech: legality, legitimacy and necessity. First, legality is not simply a matter of it being lawful. The test calls for law to provide clarity and precision, to enable citizens to foresee the consequences of their conduct on the basis of the law. Vague laws, because of the difficulty of adherence, are seen to have a chilling effect on expression. Second, the legally sanctioned restriction must protect or promote a legitimate aim – that is, it cannot be used as “back door” legislation to shield government or politicians from fair criticism. Third, the restriction must be necessary and proportionate. Necessary restriction is understood to imply action taken only as a means of last resort, where no alternative remedy exists that could achieve the same objective. Proportionate restriction means that the punishment should be on par with the offence committed.13
To a large extent, the legislative remedies proffered by Kenya’s current NCI Act and South Africa’s draft Hate Speech Bill fall short in their imprecise definitions, as discussed previously, as well as in their adherence to the principle of proportionality, particularly in the use of criminal sanction.
Is Criminal Sanction for Hate Speech Effective?
At the crux of this article is the question of the efficiency and effectiveness of criminalising hate speech.
Kenya’s experience provides useful lessons on the difficulties of prosecuting people accused of hate speech as a criminal offence. Evidence suggests that those charged with or accused of hate speech are rarely successfully prosecuted. Cases either drag on without result or are dropped – often for political reasons. Where prosecutions of political leaders have been pursued, the leadership takes advantage of the publicity rather than pursuing genuine reform. This is apparent in Kenya, where allegations were made that hate speech prosecution was only being used to silence opposition parties.14 This has also led the opposition to seek a review of the interpretation of hate speech. The vulnerability of legislative remedies being used in fighting political battles is therefore significant. South Africa is also not immune to the law and legal institutions being used in political battles. The possibility of the proposed provisions on insults, which are broad and vaguely defined in hate speech legislation, falling prey to such battles should be considered.
There is also a secondary problem to the wide-reaching laws of prosecution. Citizens who do not intend to agree with racist and other discriminatory statements would be guilty of a criminal offence by sheer cause of republishing on social media platforms. Similarly, journalists reporting on a matter of wide public interest would be at risk of facing harsh sanctions. South Africa’s Hate Speech Bill explicitly criminalises the distribution of hate speech through electronic means. The manner in which information is published and shared electronically makes prosecution for electronic distribution vulnerable to selective application, which undermines the rule of law. Moreover, a post deemed hate speech in South Africa may very quickly appear on posts of people in other countries, where national provisions against hate speech cannot apply or be enforced.
The regulation of speech, particularly in a transitioning democracy, also creates the risk of curtailing public opinion. Chuma posits that hate speech regulation has the potential to lead to either active or implicit censorship of political discourse, in the name of fostering “peace”. This, he observes, is significant, as it limits the opportunity for fair criticism of the government.15
The impact of criminalising speech on democratic participation and social dialogue should be considered. In Kenya, police have been empowered with audio recorders to monitor any hate speech at public gatherings. The significant effect this may have on public gatherings – where people may be afraid to gather or freely express dissent – is of concern. The provisions in South Africa’s new Hate Speech Bill raise different concerns around the right to gather. In so-called service delivery protests, anti-apartheid narratives in songs and speech and language that could be deemed as insulting are invoked to express present-day dissatisfaction, and could attract criminal sanction if applied strictly in accordance with the new Hate Speech Bill. The effect this may have on shutting down necessary public debate or intergroup dialogue to reduce discrimination should be of concern.
A review of South Africa and Kenya shows the complexity of attempting to regulate hate speech. South Africa and Kenya have differing contexts. Historical events show that the potential for widespread violence as a result of hate speech is much higher in Kenya – although South Africa is not immune from this, given its historical struggle with racial prejudice and inequality. The Kenyan experience shows that criminal sanction does not necessarily lead to a fair application of the law or mitigate the use of hate speech.
The following recommendations are therefore offered:
The decision to impose criminal sanction requires robust and careful consideration in line with human rights principles. The recognition from South Africa’s own courts that the use of criminal sanction on speech should only be applied as a remedy of last resort, and in line with the principle of proportionality, should be adhered to.
Kenya should re-examine its legislation in light of strengthening judiciary independence and judicial effectiveness. It is crucially important that a clearer definition of hate speech be articulated, to lessen the arbitrary application of the law. Emerging research from the Umati Project – a big data-driven research project on hate speech in Kenya16 – and other such independent studies, should be sought out in this process.
It is important to focus on the positive obligations of the state and society in promoting human rights and tolerance, rather than fighting only the manifestations of intolerance and prejudice. Independent institutions – such as the South African Human Rights Commission (SAHRC), the Equality Courts in South Africa and Kenya’s National Commission on Human Rights (KNCHR) – should ensure that their role as forums to remedy the infringement on rights is fully utilised. Effective and meaningful public education on their roles must be undertaken.
Social media is of concern for both governments, as citizens, academics and journalists increasingly use these platforms to express their views. Social media is an important tool for democratic participation, and is also helpful in predicting social unrest. Through independent human rights institutions, analysis of activity to keep abreast of social tensions, not for the purposes of undue surveillance, but to manage the risk of extreme speech that causes violence, should be undertaken. National laws that unduly infringe on social media rights and access to these platforms, under the pretext of social cohesion, should be reviewed and, where necessary, repealed.
South African and Kenyan lawmakers have taken important steps in dealing with the persistent problem of hate speech. However, legislative remedies for hate speech, particularly as it relates to criminal sanction, is not well considered in South Africa’s forthcoming Hate Speech Law and Kenya’s interventions through the NCI Commission. In both instances, punishments against hate speech may not yield the intended outcomes of preventing hate speech, nor comply with the test for any limitation or sanction on speech. Dieng aptly observes that “we must recognize the limits of legislation to combat hate speech and incitement. We need to develop a multi-layered approach to fight the root causes of hate speech, racism, and discrimination”.17
University of Minnesota Human Rights Library (n.d.) ‘Declaration of Principles on Freedom of Expression in Africa, African Commission on Human and Peoples’ Rights, 32nd Session, 17–23 October, 2002: Banjul, The Gambia’, Available at: <http://hrlibrary.umn.edu/achpr/expressionfreedomdec.html> [Accessed 24 April 2017].
UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression (2001) ‘International Mechanisms for Promoting Freedom of Expression: Joint Statement on Racism and the Media’, Available at: <http://www.osce.org/fom/40120?download=true> [Accessed 21 January 2017].