Religious Defamation

Many African states have laws prohibiting defamation of religions, and many that inherited the common law system also have the crime of blasphemous libel.  For example, despite ostensibly being a secular state with no state religion, article 816 of Ethiopia’s Criminal Code states that anyone who, by:(1)

“…gestures or words scoffs at religion or expresses himself in a manner which is blasphemous, scandalous or grossly offensive to the feelings or convictions of others or towards the Divine Being or the religious symbols, rites or religious personages, is punishable with fine or arrest not exceeding one month.”

Some countries have implemented excessively harsh penalties for the crimes of blasphemy and defamation of religion, including death.  For example, Mauritania’s blasphemy law, updated in 2017 to include even harsher language, ranks as the worst blasphemy law in the world, containing the penalty of death even if the accused repents for the alleged insult.(2) Six other African countries, including Somalia and Egypt, have scored ‘higher than average’ on the harshness of their religious defamation laws.(3)

General Comment 34 states that:(4)

“Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”

In 2017, the UN Special Rapporteur on freedom of religion or belief called on States, in his first report to the UN General Assembly, to repeal blasphemy laws because of their stifling effect on the right to freedom of religion or belief and on the ability to engage in a healthy dialogue about religion.(5)

Many other countries have abolished the offence of blasphemy in recent years, for example the United Kingdom in 2008,(6) Canada in 2018,(7) and Denmark in 2017.(8)

The Constitutional Court of South Africa grappled with religious hate speech in the case of South African Human Rights Commission v Masuku,(9) which concerns whether statements made by the respondent constitute hate speech against Jewish people in terms of the Equality Act. Ultimately, the Court applied the new definition of ‘hate speech’ as decided in the Qwelane matter (discussed above) and found that while one of the statements made did constitute hate speech, the others did not as they did not specifically target members of the Jewish faith or ethnicity.