By David Olusi
Currently there is this debate over how freedom of speech applies to the social media, ICTs and to the political speeches. However, critics of hate speech have argued that the term “hate speech” itself is a contemporary example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically correct.
The big problem for proponents of hate-speech laws and codes is that they can never explain where to draw a stable and consistent line between hate speech and vigorous criticism, or exactly can be trusted to draw it. The reason is that there is no such line.
Above all, the idea that hate speech always harms minorities is false. To the contrary: painful though hate speech may be for individual members of minorities or other targeted groups, its toleration is to their great collective benefit, because in a climate of free intellectual exchange hateful and bigoted ideas are refuted and discredited, not merely suppressed. The genius of the open society is that it harnesses the whole range of public criticism, including offensive and hurtful speech, in a decentralized knowledge-making process that has no rival at the job minorities most care about: finding truth and debunking bigotry.
Hate speech is speech that offends, threatens, or insults groups, based on race, ethnicity, tribe, color, religion, national origin, sexual orientation, disability, or other traits. The big question is, should hate speech be discouraged? The answer is easy of course! However, developing such policies runs the risk of limiting an individualâ€™s ability to exercise free speech. When a conflict arises about which is more important protecting national or community’s interests or safeguarding the rights of the individual a balance must be found that protects the civil rights of all without limiting the civil liberties of the speaker.
In a multi-ethnic country like ours there should be no right to speak fighting words, those words without social value, directed to a specific individual, that would provoke a reasonable member of the group about whom the words are spoken. For example, a person should not utter a tribal or ethnic epithet to another if those words are likely to cause the listener to react violently. But still it be should be clearly spelt that individuals do have a right to speech that the listener disagrees with and to speech that is offensive and hateful, because naturally one cannot be forced to like or hate.
Think about it. Itâ€™s always easier to defend someoneâ€™s right to say something with which you agree. But in a free society, you also have a duty to defend speech to which you may strongly object.
One way to deal effectively with hate speech is to create laws and policies that discourage bad behavior but do not punish bad beliefs. Another way of saying this is to create laws and policies that do not attempt to define hate speech as hate crimes, or â€œacts.â€ For example: The burning of a cross is a very hateful thing to do towards a Christian, since a cross is one of the symbols of the Christian religion.
In criminal law, penalties are usually based on factors such as the seriousness of the act, whether it was accidental or intentional, and the harm it caused to the victim. It is also not unusual to have crimes treated more harshly depending upon who the victim is. For example, the battery (beating someone) could be punished more harshly if the victim is a senior citizen, a young child, a police officer, or a teacher… I still don’t know if under Kenyan laws we have a the penalty for battery, if it is increased if the offender intentionally selects the victim â€œbecause of the race, ethnicity, tribe, religion, color, disability, sexual orientation and national origin or ancestry of that person.â€
There is a range of approaches to when hate speech might be regulated. On one end is the libertarian perspective; on the other, the communitarian.
Libertarians believe that individuals have the right to free speech and that the government should be able to limit it only for the most compelling reasons. Most libertarians recognize fighting words as an example of a sufficiently compelling reason to limit free speech. Notwithstanding the libertarian viewpoint, the courts must be careful to interpret this exception narrowly.
Communitarians take a different approach. They believe that the communityâ€™s well being is societyâ€™s most important goal and that an individualâ€™s right to free speech may be limited in the interests of the society or community’s harmony. They believe that treating people with fairness and dignity justifies at least some free speech restrictions, that eliminating or reducing hate speech is a sufficiently compelling goal to justify government regulation.
Communitarians would expand the fighting words doctrine to allow for increased government regulation. Can a middle ground be found, a way to accommodate both the communitarian and libertarian perspectives? Perhaps so. Government has the obligation to protect speech by disallowing laws that are too restrictive, yet it can also encourage individuals to respect each other.
Hereâ€™s how our country faced recently by various incidences of hate speech can overcome the problem amicably. We can overcome this problem by calling attention to it rather than attempting to suppress it by encouraging speech that pointed out how out of place the hate speech was in a society that values the dignity of all.
I think hate speech is merely saying hateful things that may include uncomfortable truth. It is not the same as discrimination, harassment, threats or violence all of which are qualitatively worse and are rightly criminalized.
I donâ€™t approve of hate speech and believe it should be discouraged and challenged. One of the main problems with hate speech laws is defining what constitutes hate. Unlike incitement to violence, it is highly subjective. The line between hate speech and legitimate unpalatable viewpoints is hard to draw with certainty, clarity and consistency.
Several Christian and Muslim preachers have been arrested in many countries for hate speech. Their crime? They said that homosexuality is immoral and that gay people will go to hell. I disagree with them but opposed to their prosecution. What they were saying was hurtful but not hateful. They did not express their views in a bullying or menacing tone. President Museveni of Uganda is a good gay hate speech monger yet he is called by President Uhuru Kenyatta a “professor” and an elder brother. Even though Museveni went a step further to execute his hateful passion against homosexuals by legalising the hate he remains Uhuru’s best icon.
There is a danger to use hate speech law as a political tool to silence our political critics and opponents or even use it as a scapegoating from our constitutional mandate and responsibilities. However, though free speech is one of the hallmarks of a democratic society, it should only be restricted in extreme, compelling circumstances. Criminalizing views that are objectionable and offensive is the slippery slope to censorship and to the closing down of open debate. It is also counter-productive. It risks making martyrs of people with bigoted opinions and deflects from the real solution to hate speech: education and rational debate. Hate speech should be protested and challenged, not criminalized.ï»¿
Hon. Raila Amolo Odinga, a notorious carismatic opposition and CORD leader, recently launched a national dialogue call to speak together freely and inclusively about fixing the problems ailing our nation today. His call on government to dialogue though controversial is noble. But several politicians, and various community members think that this call is about nusu mukate (participating in the Jubilee government), overthrowing the government, undermining the presidency, creating animosity etc. I beg to differ; instead of living in denial and perpetual fear of losing power or talking to each other, we must allow dialogue to happen whichever way. If allowed and everybody freely speaks, if we manage to burry the fear and speak to each other, the audience of such forum (Kenyans-the world) will be impressed. They will come to understand a confusing set of beliefs that were out of place in a democratic, multicultural society.
Several participants will speak out against the messages of hatred, they will together discuss issues based on the common good of our nation and solve various problems together. By allowing the dialogue to happen, Kenyans will recognize through it free speech rights but also provide a means for everyone to respond. Communitarian and libertarian goals will both be achieved and at the end, all the poison within would be vomited out, making us free to love and live peacefully in this our great nation as one tribe “Kenyans.”
Rev. Olusi David, a Kenyan Priest working in the Archdiocese of Rome, Is an expert in situational ethics in matters of justice.ï»¿