The Polemics of free speech, hate sppech and the incitement to hatred

Sun, 7 Aug 2016 Source: Badu, K

The right to freedom of opinion and expression is encapsulated in international law -Article 19 of the Universal Declaration of Human Rights and Article 19 of International Covenant on Civil and Political Rights.

More importantly, the freedom of opinion and expression has been given meaning in Ghana’s 1992 Constitution.

So do you think that free speech gives you the right to spew whatever you want, whenever you like, without permitted abridgement? No.

In fact, free speech is an inalienable right to seek, receive and convey information and ideas of all kinds, by any means which may be deemed appropriate.

In other words, free speech and the right to freedom of expression denotes the ideas of all kinds, including those that may be deemed offensive.

That said, the exercise of freedom of opinion and expression carries with it special duties and responsibilities.

Thus freedom of opinion and expression may be subject to restrictions, but these shall only be such as are provided by law and are necessary: for respect of the rights or reputations of others; for the protection of national security or of public order (order public), or of public health or morals.

For instance, in Ghana, our constitution detailed freedom of opinion and expression and is subject to permitted abridgment.

As a matter of fact and record, freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society.

And more so freedom of opinion and expression is not absolute and must of necessity be subject to limitations on the above lines. And, as a matter of fact, the right of free speech and expression does not extend to sedition, slander, defamation and obscenity.

Thus, the principle of equality before the law cannot deny a legislature the power to classify persons for legislative purposes and to legislate affecting them, provided that the classification is not arbitrary and is based on a real and substantial distinction bearing a reasonable and just relation to the objects sought to be achieved.

Besides, the fact that freedom of opinion and expression is not absolute and is subject to reasonable restrictions does not mean that the right can be capriciously curtailed according to legislative, executive or judicial discretion.

For the ways in which restrictions are to be determined and imposed and the criteria which apply to the formulation of permitted abridgement are pivotal.

Furthermore, if freedom of opinion and expression is to be meaningful, it cannot however be subject to crude majoritarian dictates.

For what differentiates a human right from any other right is that a human right is available to and enforceable by a minority, however small and even against the wishes of a majority.

And, if freedom of opinion and expression was to become subject to ordinary legislature, executive or judicial control, it would however be no different from any other statutory right which the authorities are free to confer and withdraw at their pleasure.

Thus, the restriction of freedom of opinion and expression becomes a crucial and delicate question. For any restrictions cannot be based on ideological perceptions of legislature, executive or judicial, but must be predicated on objectively founded and comprehended criteria.

On the other hand, we must not and cannot lose sight of the fact that most wars, crimes and genocides which were perpetrated against humanity were arguably expedited through the use of hate speech aimed at securing popular support for illegal and violent action.

Apparently, this can be witnessed continued in the past and in the modern era. For we can attest to the Nazi hate speech which preceded the Holocaust, the Radio and Television hate speech which preceded the Rwandan Genocide and al-Qaeda hate speech which preceded the attacks on ‘World Trade Centre on September 11, 2001.

Thus, we can infer that hate speech could spell doom for a nation. So it is necessary and proper to stay away from any opprobrious epithets that can incite violence.

For in a great scheme of things, freedom of opinion and expression is not an absolute right in national and international jurisprudence.

In fact, this right, like others, may be restricted to protect and balance other rights and interests. However, it is the complexion and the degree of these restrictions that is often contended in extant human rights and security jurisprudence.

Actually, the two known restrictions on the right to freedom of expression are: The prohibition of advocacy of any national, racial or religious hatred and the prohibition of propaganda.

Nevertheless, the prohibition of propaganda is not innately contradictory to the right to freedom of expression.

The right holder, however, has to be cognisant of the duty and obligations which are encapsulated in the international human rights instruments.

Interestingly, however, while propaganda for genocide is codified as an international crime, the propaganda for the incitement to aggressive war is not.

All the same, incitement to commit an illegal act is in itself illegal under international law.

Nevertheless, incitement, instigation, abetment and solicitation are all common to various criminal codes world-wide.

These are generally considered "inchoate offense[s]" or "a step toward[s] the commission of another crime, the step itself being serious enough to merit punishment”.

In the English common law for instance, there are three general inchoate offenses: 1) attempt; 2) conspiracy; and 3) incitement.

“ Incitement conveys a "general label to cover any use of words or other device by which a person is requested, urged, advised, and counselled, tempted, commanded, or otherwise enticed to commit a crime."

Apparently, the only non-derogable rights or absolute rights within the international law include inter alia, Articles 6, 7, 8 (paragraphs I and II), 11, 15, 16 and 18 of the International Covenant on Civil and Political Rights (UN 1966).

This is because those rights encapsulated in the preceding articles are non-derogable; which include right to life; free from torture; free from slavery; unlawful arrest and detention; equal recognition everywhere before the law, and right to freedom of thought, conscience and religion (UN 1966).

Of course, you have inalienable rights as a human being. Nonetheless, such rights are subject to permitted abridgement, so stop misusing the inherent rights gratuitously.

K. Badu, UK.

Columnist: Badu, K