Introduction

Despite the importance of freedom of expression, not all speech is protected under international law, and some forms of speech are required to be prohibited by states.  Article 20 of the International Covenant on Civil and Political Rights (ICCPR) provides that:

“(1)       Any propaganda for war shall be prohibited by law.

(2)        Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

In addition, article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination requires that the dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, must be declared an offence that is punishable by law.

Hate speech provisions under international law distinguish between three categories of speech: that which must be restricted, that which may be restricted; and that which is lawful and subject to protection, according to the severity of the speech in question. Hate speech regulations vary significantly by jurisdiction, particularly in how they define what constitutes hate speech and to what extent they differ by speech that is offline versus online. This is necessary, given the importance of contextual and cultural adaptation to a particular context.

Hate speech must, however, be clearly and narrowly defined and objective criteria must be applied. In the 2023 case of The Incorporated Trustees of Expression Now Human Rights Initiative v. Federal Republic of Nigeria, the ECOWAS Court held that provisions of Nigeria’s Broadcasting Code violated the right to freedom of expression in the African Charter because its provisions on offensive and hate speech prohibited speech that was protected, were too vague, ambiguous and overbroad, and the sanctions imposed were excessive. The Court ordered Nigeria to bring the provisions into alignment with international standards.

Over-regulation of hate speech can also violate the right to freedom of expression, while under-regulation may lead to intimidation, harassment, or violence against minorities and protected groups. Importantly, hate speech should not be conflated with offensive speech, as the right to freedom of expression includes speech that is robust, critical, or that causes shock or offence.(1) Hate speech is perhaps the topic that creates the most disagreement among defenders of freedom of expression, as defining the line between offensive but constructive critical speech and hate speech can be extremely difficult.

As a general principle, no one should be penalised for statements that are true. Furthermore, the right of journalists to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance, and no one should be subject to prior censorship. Finally, any sanctions for hate speech should be in strict conformity with the principle of proportionality.

There are some distinctions between hate speech online and offline that may require consideration,(2) but the law usually does not distinguish between the two:

• Content is more easily posted online without due consideration or thought. Online hate speech cases need to distinguish between poorly considered statements posted hastily online, and an actual threat that is part of a systemic campaign of hatred.
• Once something is online, it can be difficult (or impossible) to get it off entirely. Hate speech posted online can persist in different formats across multiple different platforms, which can make it difficult to police.
• Online content is frequently posted under the cover of anonymity, which presents an additional challenge to dealing with hate speech online.
• The internet has transnational reach, which raises cross-jurisdictional complications in terms of legal mechanisms for combatting hate speech.

The re-emergence of the use of hate speech laws in Kenya is an example of how well-meaning laws that limit supposedly dangerous speech can quickly turn into tools for the suppression of dissent. The 2008 National Cohesion and Integration Act (NCIC) encourages national cohesion and integration by outlawing discrimination and hate speech on ethnic grounds to prevent the kind of deadly election-related violence that Kenya experienced in 2007-2008. However, in 2020 two Members of Parliament were arrested for speech that was critical of the President and his mother under provisions in the NCIC.(3)

Judges in Kenya have observed that the landscape of politics often blurs the boundaries between hate speech, political discourse, and criticism of elected officials.(4) A notable case illustrating this complexity is Ian Karani Wamboma v Republic which involved the distribution of leaflets containing the message “watu wa Jubilee wahame Busia County mara moja or else watakiona” (Jubilee supporters should move out of Busia County at once, or they’ll see {the consequences}).(5)

The Court clarified that Kenyan politics are frequently organised along ethnic lines, yet cautioned against applying the National Cohesion and Integration Act (NCI Act) to political offences unless the speech unequivocally targets specific ethnic groups.

South Africa has also recently grappled with these issues as the legislature has considered a newly proposed bill, the Prevention and Combatting of Hate Crimes and Hate Speech Bill, 2018. Intended to address the rising prevalence of hate crimes and hate speech in the country, particularly online, and to give effect to the rights against discrimination in the Constitution, the Bill has nevertheless been criticised for creating the potential to silence criticism and end difficult discussions about race, gender, religion, and sexuality.(6) The Bill would extend the protected characteristics defined in South Africa’s Constitution from four to fifteen, introduce a new, broad definition of “harm” that critics say would be open to subjective interpretation, and by regulating private communications would also intrude in the right to privacy. In December 2023, the Bill passed both houses of parliament and is awaiting Presidential signature before becoming law. However, there have been calls from civil society organisations for the President not to sign the Bill into law because it criminalises hate speech and opens itself up to being used to undermine freedom of expression.(7) There were reported to be over 10,000 submissions to the National Council of Provinces opposing the Hate Speech Bill.(8)