The Inherent Danger of Hate Speech Legislation - A Case Study from Rwanda and Kenya on the Failure of a Preventative Measure

“FoE (Freedom of Expression) is one of the most fundamental human rights. Nevertheless, a fierce debate exists on the necessity to restrict some types of speech.”

This paper looks at whether hate speech legislation is an appropriate response to the Rwandan genocide in 1994 and the Kenyan post-election violence in 2007/2008 by weighing up the preventative potential of hate speech legislation against the potential of this legislation to restrict freedom of expression (FoE) and media freedom. As explained in the paper, “[H]ate speech legislation is seen as an efficient and appropriate means to prevent harm emanating from speech. International Conventions, most notably the Genocide Convention and the International Covenant on Civil and Political Rights (ICCPR) put an obligation on their state parties to prohibit different forms of incitement. Some states - such as Rwanda - have reacted by adopting legislation against various forms of hate speech. In Kenya, the popular term is even couched in the new Constitution.”

In order to investigate the issue, the paper takes a closer look at the circumstances that led to the Rwandan genocide and Kenyan post-election violence (PEV), and examines the international and national legislative background around hate speech. It asks the questions: 1) What role did hate speech play during the Rwandan genocide and the Kenyan PEV, and who bears the greatest responsibility for hate speech? and 2) What are the shortcomings of legislative measures targeting hate speech, what are the costs particularly concerning FOE, and what are the benefits with regard to conflict prevention?

The paper then provides a cost-benefit assessment of hate speech legislation and provides empirical evidence for the actual costs of the tool in practice - namely, the restriction of FoE and media freedom. It evaluates the preventative potential of hate speech legislation that is assumed and upheld in theory. While having in mind that a preventative effect is limited to harm emanating from speech and while acknowledging that it is difficult to prove or disprove such an effect in practice, the analysis combines cognitions about the utilisation of hate speech in Rwanda and Kenya with assessed shortcomings of the tool to put forward certain conclusions on its preventative capability.

In brief, the investigation shows that a measure that was initially adopted with good intentions might in the worst case rather add fuel to the fire. The potential for political abuse of the legislation at the national level is simply too great and is having the opposite effect on FoE and media freedom. For example, in Rwanda, hate speech legislation is providing a tool for the government to suppress the opposition, media representatives, civil society actors, and the general public for legitimate speech and dissent. “Whole news media are suspended or completely closed for providing platforms for anti-government stances. The persecution of individual politicians and journalists has a great negative impact on society. Access to unbiased information is impeded and the ‘Marketplace of Ideas’ destroyed. Instead of supporting a process of reconciliation, the laws are used to suppress a necessary, healthy and constructive debate on sensitive topics of the past. As a result, citizens strive to switch to other forms of conflict resolution, which ‘ironically’ means that hate speech legislation itself is misused to settle personal disputes. Rwandan hate speech legislation has itself become a tool that fuels further conflict. While the Rwandan government abuses hate speech legislation to silence its critics in order to secure its power position, the Kenyan government employs hate speech provisions to justify its surveillance of Kenyan citizens. At the same time, politicians who publicly call for displacements and violence are allowed to escape punishment in the name of cohesion."

As an alternative to hate speech legislation, the paper puts forward a list of alternative approaches that do not jeopardise FoE and media freedom, and are more likely to have a preventative effect. In brief, the recommendations include:

Government and State Officials

• Start tackling the root causes of violence while listening carefully to hate speech: Hate speech legislation only combats a symptom. The most effective way to prevent violence emanating from speech is to tackle the underlying root causes.
• Promote a constructive conflict culture to deal with unresolved problems.
• Secure access to information and develop/protect the ‘Marketplace of Ideas’: A monopoly on opinion favours unchallenged incitement and thus makes it far more dangerous. States must therefore ensure that citizens have access to alternative information; they must develop or protect a ‘Marketplace of Ideas’.
• Ensure ownership transparency of media ownership: This is especially the case in Kenya, where politicians own a considerable number of television and radio stations, as well as newspapers.
• Counter hate speech employed by colleagues: It should be an imperative for those charged with governance to refrain from employing hate speech, and to understand their responsibility of firmly and promptly countering hate speech employed by colleagues and other public figures.

The Public

• The public can address hate speech by taking an active stand against it, and by, for example, using social media to stop the spread of rumours.

The Media

• The classical preventative strengths of the traditional media sector: The job of the media is to provide a variety of ideally unbiased information, and that alone may counter hate speech. Beyond this, it is of course desirable if the media explain puzzling events and analyse them within their context.
• A constructive dialogue means not sinking into a peace coma: To counteract the hate speech, the airwaves became flooded with peace speech. However, too much peace speech can stop people from dealing with underlying conflicts in society. There needs to be a balance. Conflict can be constructive if the form of settling it is a healthy dialogue.
• Phone-in programmes and talk shows - Transforming risks into chances: The popularity of such programmes demonstrates the demand for debate in Kenya. There is a risk in banning such outlets that may in fact have worked for many citizens as a tool for outbursts, an alternative to physical violence.
• ‘Naming and Shaming’ is a technique the leading television station Kenya Television Network has experimented with: Questionable statements that may contain hate speech by politicians, who directly address their own ethnic groups in vernacular language, are broadcasted on national television with Swahili or English subtitles.
• Media Intervention: Use edu-tainment and psycho-education to combat hate speech, as simply condemning hate speech and promoting democratic values through traditional media approaches is not always effective. The paper cites an example of a radio drama implemented by La Benevolencija in Rwanda.

Monitoring Institutions

• Media monitoring activities by independent, traditional media monitoring organisations is a very effective means in terms of early warning efforts.

International Community

• The international community should look at measures that are available to react to ongoing violence fuelled by media, such as the jamming of electronic media. This should, however, be done with great caution, as the complete withdrawal of media can have a destabilising effect.