Promoting Human Rights & Rule of Law in South Africa
17 May, 2012
Increasingly, leaders in Africa are able to propagate hate speech against LGBT persons with shameless impunity. On 10 May 2012, for example, at a community gathering, the Zimbabwean Minister of Local Government, Rural and Urban Development, Ignatius Chombo, allegedly made the statement that “chiefs are there to protect and promote our cultural values and those who support same-sex marriages must be banished from the communities and dispossessed of their land.” Once the statement was made by Minister Chombo in his national leadership capacity, the community leaders present were quick to reiterate his views. Arguably, Minister Chombo’s comments fall foul of section 37 of the Criminal Law (Codification and Reform) Act which prohibits participating in a gathering with the intent to promote violence, breaches of the peace or bigotry. No doubt, his statements are likely to fuel prejudice, stigma and discrimination against the LGBT community. No doubt also, Minister Chombo will receive no admonishment for his remarks from his superiors. Unfortunately, that is the nature of politics in our society that leaders at all levels are so often able to use their position to propagate hatred against marginalised groups. This is not a situation we should be complacent about.
In general, hate speech is recognised as a process where a group is singled out based on their immutable characteristics, labelled as inferior and targeted for discriminatory treatment. Hate speech is perpetrated against the LGBT community throughout the world. Often it is perpetrated by politicians who use it as a way to sweep up voters or to divert attention from more pressing issues facing communities. In some instances, such hate speech is deliberate and organised. This is for example the case with so-called evangelists who come to Africa to espouse the doctrine that homosexuality is satanic and destructive of social mores and that there is a need for strong legislation to criminalise homosexuality and prohibit advocacy on the rights of LGBT persons. Anti-homophobia Day on 17 May 2012 serves as a reminder of the need for all human rights organisations to intensify their promotion of the rights of the LGBT community.
In March 2012 a Ugandan NGO and the US Centre for Constitutional Rights brought a civil suit against an American evangelist, Scott Lively, in Massachusetts precisely because he fuelled anti-gay legislation in Uganda during his visits and through his comments on homosexuality. The organisation’s court papers illustrate how, before the intervention of Mr Lively in Uganda, gay men and lesbians were simply seen as different, but now people are reported to the police as homosexuals, and thrown out by their families and the church. Shortly after Mr Lively’s work in Uganda in 2009, one Member of Parliament, Mr Christopher Kibansanga expressed his hatred as follows: “We must exterminate homosexuals before they exterminate society”. More recently, in February 2012, when the Ugandan Minister of Ethics and Integrity, Simon Lokodo, forcefully disrupted a meeting organised by Freedom and Roam Uganda, he was quoted as saying: “in the past they were stoned to death. In my own culture they are fired on by the firing squad, because that is total perversion.”
The problem is that in the international community this remains disputed terrain. There is currently a debate in international legal circles regarding the extent to which freedom of expression trumps other rights and actually entitles people to propagate hatred. Freedom of expression advocates have balked at attempts to equate hate speech based on ‘sexual orientation’ with hate speech based on ‘race’. I can understand their need to want to limit any infringements on the right to freedom of expression. The right to freedom of expression and opinion is in constant peril in African states, with many human rights defenders and journalists being targeted for simply expressing their views and opinions. But do we ever spare a thought to the extent to which the freedom to express hatred against the LGBT community impacts on their right to freely express their views and opinions (and their related rights to assembly and association)? What about their rights to dignity and to live lives free from violence?
The International Covenant on Civil and Political Rights guarantees the right to freedom of opinion and expression in Article 19. In terms of Article 20, any propaganda for war, as well as any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. The Human Rights Committee’s recent General Comment No 34 of Article 19 emphasises that restrictions of the right must not be over broad and must conform to the principle of proportionality. The General Comment emphasises that Article 19 is compatible with and complements Article 20.
The African Charter on Human and Peoples’ Rights does not deal with incitement directly. Article 9 of the African Charter provides that every individual shall have the right to express and disseminate his or her opinions within the law. But, Article 28 emphasises that “every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.”
Countries vary in how the prohibition against incitement is approached in legislation. People have multiple identities, and, as pointed out by Henry Maina of Article 19, laws prohibiting incitement and discrimination should evolve to recognise other identities and prohibited grounds for hate speech, including sexual orientation and gender identity.
There are some good examples of legislation which aims to limit hate speech, born out of the intense hardship faced by countries where communities were destroyed as a result of the propagation of hatred against specific groups. Notably South Africa, Rwanda and Kenya. In South Africa requirements for hate speech are that it must be on a prohibited ground (including sexual orientation) and must be reasonably construed to demonstrate a clear intention to be hurtful, harmful or to incite harm or propagate hatred.
Various constitutional and legal reforms recognise that incitement to violence should not be protected under the right to freedom of expression. Zambia’s draft constitution prohibits advocacy of hatred that vilifies or disparages others, or incites harm, or is based on a prohibited ground of discrimination. Angola’s draft Penal Code prohibits crimes against humanity, including widespread or systemic attacks and persecution for reasons of sexual orientation.
According to the European Court of Human Rights, the Court has sought to strike a balance between the right to express views, including views that shock or disturb others, and the genuine and the serious incitement of extremism. Although no clear definition of hate speech exists, the Court has sought to delineate the parameters which characterise hate speech in order to differentiate it from those forms of speech which are protected under the freedom of expression clause. In the February 2012 judgment of Vejdeland v Sweden, the Court stressed that discrimination based on sexual orientation was as serious as discrimination based on race, origin or colour.
The Vejdeland case concerns 4 Swedish nationals who were convicted in Sweden for violating the Swedish Penal Code when they distributed leaflets at a school which inter alia referred to “homosexuality has a morally destructive effect on the substance of society”. The Court held that the law’s interference with the Applicants’ exercise of their right to freedom of expression can “be regarded by the national authorities as necessary in a democratic society for the protection of the reputation and rights of others”. Whilst the judgment in this case is welcome, the dissenting opinions reveal the huge discomfort felt by the bench in exercising its decision to limit freedom of expression.
Fortunately, there have also been cases where courts easily recognised that hate speech against LGBT communities are unjustified. For example, the Ugandan High Court, in December 2010, interdicted a local newspaper, Rolling Stone, after it published the names and addresses of people it claimed were gay or lesbian, under the heading “Hang them, they are after our kids!!!”. Even though same-sex sexual conduct is criminalised in Uganda, the Court stated that this does not criminalise a person for being gay. Using an objective test, the Court concluded that the publication threatened the rights of the Applicants to respect for human dignity and protection from inhuman treatment and the right to privacy of the person and home.
LGBT persons are entitled to the same protection against discrimination and incitement as everyone else. Unfortunately the recent UN Human Rights Council Panel discussion on Human Rights, Sexual Orientation and Gender Identity, held in March 2012, highlighted the fact that many countries continue to turn a blind eye to the serious human rights violations perpetrated against LGBT persons in their own countries. Allowing hate speech against specific groups inevitably spreads the message that hate speech against any group is acceptable and limits the extent to which lasting peace will be achieved in Africa.
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