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This is a repository copy of Hate Speech, Key concept paper.
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Elliott, C, Chuma, W, Gendi, Y.E. et al. (2 more authors) (2016) Hate Speech, Key concept
paper. Working Paper. MeCoDEM . ISSN 2057-4002 (Unpublished)
©2016 Charlotte Elliott, Wallace Chuma, Yosra El Gendi, Davor Marko, Alisha Patel. The
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1
Charlotte Elliott, Wallace Chuma, Yosra El Gendi,
Davor Marko, Alisha Patel
Hate Speech
Key concept paper
July 2016
The Working Papers in the MeCoDEM series serve to disseminate the research results of work in
progress prior to publication in order to encourage the exchange of ideas and academic debate.
Inclusion of a paper in the MeCoDEM Working Papers series does not constitute publication and should
not limit publication in any other venue. Copyright remains with the authors.
Media, Conflict and Democratisation (MeCoDEM)
ISSN 2057-4002
Hate Speech: Key concept paper
Copyright for this issue: ©2016 Charlotte Elliott, Wallace Chuma, Yosra El Gendi, Davor Marko,
Alisha Patel
WP Coordination: University of Leeds/Katrin Voltmer
Editor: Katy Parry
Editorial assistance and English-language copy editing: Emma Tsoneva
University of Leeds, United Kingdom 2016
All MeCoDEM Working Papers are available online and free of charge at www.mecodem.eu
For further information please contact Barbara Thomass, barbara.thomass@rub.de
This project has received funding from the European Union’s
Seventh Framework Programme for research, technological
development and demonstration under grant agreement no
613370. Project Term: 1.2.2014 – 31.1.2017.
Affiliation of the authors:
Charlotte Elliott
School of Media and Communication, University of Leeds
cscke@leeds.ac.uk
Wallace Chuma
The Centre for Film and Media Studies, University of Cape Town
wallace.chuma@uct.ac.za
Yosra El Gendi
Department of Political Science, American University in Cairo
yosraelgendi@aucegypt.edu
Davor Marko
Faculty of Political Sciences, University of Belgrade
davor.marko@analitika.ba
Alisha Patel
Centre for Socio-Legal Studies, University of Oxford
alisha.patel0@googlemail.com
Table of Contents
Executive Summary ................................................................................................... 1
1. Introduction ............................................................................................................ 2
2. Freedom of speech ................................................................................................ 2
3. Hate speech and international legislation ............................................................... 3
4. In context: four countries ........................................................................................ 6
4.1. Egypt: Hate speech in the post-January 25th Uprising (Yosra El Gendi) ......... 9
4.2. Kenya: Responses to electoral violence: The problem of hate speech,
peaceocracy and censorship (Alisha Patel) .......................................................... 16
4.3. Serbia: Hate speech and a legacy of the past (Davor Marko) ....................... 20
4.4. South Africa: Reflections on hate speech (Wallace Chuma) ......................... 24
7. Conclusion ........................................................................................................... 28
8. References ........................................................................................................... 32
1
Executive Summary
This paper explores the concept of hate speech, both theoretically and within
the context of the MeCoDEM project’s four country case studies: Egypt, Kenya, Serbia
and South Africa. Instead of seeking to provide an objective definition of hate speech,
the paper’s empirical approach highlights that context matters. More specifically,
analysis of the political and socio-economic context in which the speech act occurs
and consideration of the nature of the speaker and audience – including their impact
and transmission – allows for a nuanced and informed approach to evaluate hate
speech, and how this impacts democratisation processes.
The paper presents:
A general discussion of freedom of speech and its relationship with hate
speech;
A brief discussion on the definitions of hate speech and international legislation;
A short discussion of hate speech in the four country contexts of the MeCoDEM
project: Egypt, Kenya, Serbia and South Africa.
2
1. Introduction
This paper will address the topic of hate speech as a key concept in the Media,
Conflict and Democratisation (MeCoDEM) project. In general, hate speech can be
broadly defined as a speech act that antagonises or marginalises people based on
their identification with a particular social or demographic group. It is the result of
communication processes that compromise human dignity, equality and human rights.
However, definitions of hate speech can be contentious and problematic, given
tensions between the labelling of a harmful speech act as such, which has the potential
to antagonise or marginalise an individual or group, and those speech acts that
contribute to a pluralistic debate on a particular issue. An examination of hate speech
is therefore highly contextual, and defining it in absolute terms can present
complicated philosophical discussions on the meaning of belonging, freedom of
expression and dignity within a given culture or society. Furthermore, it can be shaped
and influenced by the unique media landscape in specific country contexts – amplified
by the growing usage of social media. This paper offers a brief background of hate
speech in the context of freedom of speech and international legislation. Hate speech
is then discussed in relation to the four case study countries that comprise the studies
within the MeCoDEM project: Egypt, Kenya, Serbia and South Africa.
2. Freedom of speech
The term “freedom of speech” is used to capture those discursive acts – often
political in nature – that can be imparted or received, without constraint or censorship,
particularly on the part of government authorities. It is also known according to other
3
terms such as “freedom of expression,” or in certain legislative contexts, “freedom of
the press”. These can be in the form of spoken or written words, but can also be
actions or thoughts expressed through artistic or performative means. Indeed, any
channel can communicate these speech acts, including print, visual, broadcast, and
online media. Freedom of speech is therefore a layered and multi-faceted concept,
and encompasses several debates on fundamental political concepts and
philosophies, their interpretation, as well as their regulation.
Tensions between hate speech and freedom of speech become apparent with
speech acts that intentionally seek to violate or denigrate an individual’s membership
to a particular socio-economic, demographic or political group. Navigating through
these tensions invites a consideration of the repercussions of limiting or encouraging
freedom of expression, including the defence of hate speech, and whether or not this
significantly affects a person or group’s right to human dignity (Barendt, 2005: 5). The
universal right to “human dignity” is therefore intrinsically connected to the protection
of fundamental political rights and freedoms. Freedom of speech and hate speech
then becomes a point of contention when the balance between opinion and violations
of human dignity are shifted, raising the issue of hate speech and international
legislation.
3. Hate speech and international legislation
Hate speech is a type of discriminatory speech that arises when people from
different social, ethnic, or religious groups interact with one another, or when one such
4
group asserts its power over others. There are many different ways of describing hate
speech in more detail, but one definition is as follows:
Hate speech is defined as a bias-motivated, hostile, malicious speech aimed at
a person or a group of people because of some of their actual or perceived
innate characteristics. It expresses discriminatory, intimidating, disapproving,
antagonistic, and/or prejudicial attitudes toward those characteristics, which
include gender, race, religion, ethnicity, color, national origin, disability, or
sexual orientation. Hate speech is aimed to injure, dehumanize, harass,
intimidate, debase, degrade, and victimize the targeted groups and to foment
insensitivity and brutality against them (Cohen-Almagor, 2013: 43).
The above description is a thorough explanation of how hate speech can be
understood. Establishing a definition, however, is one element in understanding hate
speech. How it is negotiated within a particular context, in a given society and at a
particular point in time is equally important. An understanding of the political and socio-
economic context in which the hate speech act occurs should also be supplemented
with an analysis of the speaker and audience to fully gauge the likely impact of the
discourse. For example, Benesch’s (2013) dangerous speech framework also allows
for analysis of the speaker and the degree of influence they have over the audience;
the grievances and fears that the audience may have that the speaker is able to
cultivate in the message; and the mode of dissemination, which may be influential in
itself.
Negotiating hate speech is a delicate matter because, “from a human rights
perspective, the right to life and the prohibition of discrimination are to be balanced
against the freedom of expression” (Buyse, 2014: 796), and the sometimes
5
consequential need for tolerance of these multiple expressions.
1 In this way, a
controversial case could be made for the protection of speech acts that are often
divisive. Protecting hate speech, however, presents the risk of prejudices becoming
entrenched in pluralistic societies (Hirvonen, 2013), which then compromise concepts
of human dignity, defamation and human rights (Leo et al., 2011). Still, protecting hate
speech does not only protect the speaker’s rights but also allows the target of these
speech acts to “speak back” (Mårtensson, 2013). Freedom of speech principles then
need to be balanced by considering whether or not these speech acts are offensive or
incite violence (Tsesis, 2013), and so the question of legalisation comes into play.
When we think about legislation, established laws and judicial systems are
heavily reliant on Western paradigms, frameworks and institutions. American courts
have been contending with issues on free speech for a few hundred years, whereas
the European courts have been dealing with them within the last seven decades
(Barendt, 2005: 55). When considering hate speech, there is a need to remember that
human rights law does not dictate that freedom of expression is an unconditional right.
Freedom of expression can be limited by protocols determined by documents like the
International Covenant on Civil and Political Rights (ICPPR), the American Convention
on Human Rights (ACHR), and the European Convention for Human Rights (ECHR)
(Buyse, 2014: 791). With regards to discrimination, Article 20(2) of the ICPPR states:
“Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law” (OHCHR, 1976). Further
clauses on racial discrimination are also found in the International Convention for the
1 For a thorough discussion on these themes, see: Hare, I. and Weinstein, J. eds. 2009. Extreme
Speech and Democracy. Oxford: Oxford University Press.
6
Elimination of All Forms of Racial Discrimination (OHCHR, 1969). It is also evident that
much has been written in the American and European contexts (Bleich, 2011),
resulting in a need for more discussion in the non-Western contexts.
4. In context: four countries
The cases discussed in this paper offer much material that contributes to
discussions on the media and free speech in general, and more specifically, themes
on hate speech and international legislation on discriminatory speech. These
discussions, however, primarily occur from a “Western” perspective, which is
influenced by several factors: Western thought and philosophy, the Western model of
political construction of democracy, and presumptions of what it means to have
freedom and liberty of expression in these contexts. All of these tie into the role of the
media and how these influence (or impede) the roles of citizenship and cultural
identities. The MeCoDEM project’s aim, however, is to look at civic conflicts in country
contexts that are – to varying degrees – to be viewed from other perspectives than the
“Western” one. The selected countries are unique because they are in various stages
of political development, where they are either negotiating democratisation, or in the
process of democratising. The media play a fundamental role here because, “without
doubt, freedom of speech and a free press are among the major achievements of
democratisation. But the experience of many emerging democracies implies that
under certain circumstances the media can also turn into an obstructive force that
sharpens conflicts and might even trigger violence” (MeCoDEM, 2015).
2 This paper
2 For more information about the MeCoDEM project, please visit: www.mecodem.eu.
7
will now discuss these discussions in the contexts of the four countries of the
MeCoDEM project: Egypt, Kenya, Serbia and South Africa.
In the case of Egypt, we see that after the uprisings in January 2011, media
freedom has been in flux, where discourses on contentious issues have become highly
politicised and polarised. When we discuss hate speech in the Egyptian context, the
matter of negative attention to religious groups and social minorities has played a key
role in facilitating this media politicisation and polarisation. This in turn is affected by
laws, which seemingly favour certain religions, leaving members of other religious
communities as well as minority groups vulnerable to lack of protections that would
otherwise be enforced by national and international laws on discriminatory speech.
The Kenyan case discusses the suppression of speech and what this means
for a democratic participation of citizens in the media, as well as responsible
journalistic practices. Kenya is a richly diverse nation, comprising of many languages
and ethnic groups; some of which were the focus of directed hate speech and
incitement to hatred during the 2007 elections. These sensitive issues, paired with a
history of violent elections, mean that suppressing the media, even if it is for the
“greater good”, in turn prevented democratic and legitimate discourses on politics in
Kenyan society from taking place during the 2013 elections.
The Serbian case has to do with a legacy of struggle after the dissolution of
Yugoslavia, and the consequential establishment of a new government. During
Milošević’s regime, the use of propaganda citing “the enemy”, and manipulation of
mainstream media was prevalent. After 2000, we see that the struggle for power and
8
conflict between political parties involved, normatively speaking, quite moderate use
of language in the public domain, with hidden messages that often forged fear of each
other. The lack of sustainable policy protecting the media has resulted in it not only
receiving the lack of attention and funding needed for a robust media system, but also
losing its status as a forum for democratic debate. This has resulted in acts of hate
speech being prevalent in tabloids and the online milieu today, consequentially
requiring a growing need for external support for projects educating the public on
discriminatory speech and media literacy.
The case of South Africa presents unique challenges in delineating hate
speech, due to the relationship between its recent history of the abolition of state-
sanctioned racial segregation and racial repression known as Apartheid, and its
current state as a nation in democratic transition. The South African case is unusual
because it is one of the rare circumstances where suppressing speech (in some cases,
speech which has been normalised for generations), is required to protect the dignity
of members of the community in post-Apartheid terms, however, this suppression also
can be interpreted as going against fundamental principles of freedom of thought and
of expression; which are needed in order to foster a pluralistic environment.
Each of the sections that follow aim to shed light on the complex issue of
negotiating and understanding language and conflicts that involve discriminatory
speech and hate speech. The central threads that can be seen between these cases
are the roles of ethnicity, religious affiliation and/or identity in politics, and how conflicts
arise in cultures and societies that already suffer from profound divisions. These
divisions are the result of a volatile history and sensitive issues to do with collective
9
and cultural memory. They are also consequences of divisions brought on by
democracies that are in flux due to an ever-present struggle between political powers
and an increasingly challenging civil society.
4.1. Egypt: Hate speech in the post-January 25th Uprising (Yosra El Gendi)
Since the January 25th Uprising in 2011, various forms of hate speech have
been on the rise in Egyptian media. These can be divided into xenophobic, political,
religious and cultural forms. Politically-induced hate speech contains hate speech
against political groups for their political opinions (Zahraa, 2014: 162-174). It also
includes hate speech based on nationalist discourses against some Arab nationals.
Xenophobic hate speech is hate speech that incites the hatred or rejection of
foreigners, particularly Westerners. Cultural forms of hate speech include forms of
hate speech against religious groups, particularly religious minority groups (Allam,
2014), ethnic groups as well hate speech against members of the Lesbian, Gay,
Bisexual, and Transgender (LGBT) community. This section will first examine some of
the conditions leading to the upsurge of hate speech since 2011. Secondly, it will
examine how hate speech is treated by Egyptian laws and examine the ways these
laws are implemented.
Political hate speech: There are several factors that led to the increase of
political forms of hate speech in the aftermath of the January 25th Uprising. First, a
state of “chaotic expression of opinions” resulted from the deposal of the Mubarak
regime, and this was paired with low professional standards and professional ethics
(Issawi, 2014: 69-70). This in turn led to an increase of unsubstantiated accusations
and hate speech in the media discourse against political groups and political figures
10
(Zahraa, 2014: 178-179). Second, a variety of studies has pointed out that media
ownership led to the lack of autonomy in Egyptian media. This led to a situation of
media politicisation, which influenced its reporting (Issawi, 2014: 54). The political
polarisation at the end of President Morsi’s rule and the aftermath of the June 30th
countrywide protests meant that both political groups resorted to extreme discourses
against each other. It was not unusual to find different forms of conspiracy theories
and unsubstantiated generalised claims circulating throughout the media, which were
directed against specific political groups (Zahraa, 2014: 175-180). This also led to
various forms of hate speech against members of different religious groups,
particularly Christians; which resulted in several communal attacks against them in the
aftermath of President’s Morsi’s deposal (EIPR, 2014: 70-75).
Nationalist hate speech: While political hate speech targets Egyptian opposition
figures, factions or dissident nationalists, nationalist hate speech is a form of politically
motivated hate speech that is mostly directed against Arab state nationals, for their
political opinions on Egyptian politics and loyalty to one side or the other. The
nationalist discourse, highlighting the strength of Egyptians to build their nation was
also based on a strong conspiracy theory relating to the external “enemies of the
nation”. This is mainly directed against the Syrian and Palestinian residents (Uthman,
2014). TV hosts hurled threats at Syrian refugees if they intervened in Egyptian politics
or took sides. A former parliamentarian appearing on TV has also called for imposing
the death penalty on any non-Egyptian joining the protests. Hate speech against the
Palestinian community has been based on accusations pertaining to the relationship
between Hamas and the Muslim Brotherhood (Uthman, 2014). Nationalist hate speech
is different from the xenophobic discourse that is based on colonial legacies.
11
Xenophobic hate speech: Xenophobic hate speech has increased since the
January 25th Uprising. While xenophobic hate speech may emerge in periods of
national crisis, different levels of xenophobia are rooted in an anti-colonial discourse
that aims at liberating the Egyptian nation from the trends of Westerners and to
maintaining local customs and traditions. After the January 25th Uprising, the rise in
this discourse was partially a result of attempts to discredit democratic ideas and
supporters of the uprising as being Westernised and thus inauthentic. This was also
manifested in advertisements on TV that warned of the dangers of giving information
to foreigners, perceived as potential spies (Uthman, 2014). In the case of a crackdown
on civil society in 2011, a number of international NGOs (including the National
Democratic Institute, International Republican Institute, Freedom House, Konrad
Adenauer Foundation and others) were accused of operating illegally in Egypt (El
Taraboulsi et al., 2013: 11), was an extension to this discourse. Thus, the increase of
xenophobic sentiments after the January 25th Uprising in 2011 was conducive to the
increase of xenophobic hate speech.
Hate speech against religious groups: Cases of religious blasphemy underwent
a qualitative change after the January 25th Uprising. Prior to the uprising, reported
cases of religious blasphemy were directed against notable thinkers, such as writers
and novelists, as a way of restricting their freedom of conscience and freedom of
expression. This was usually coupled with religious figures declaring them infidels,
therefore constituting a lethal threat to them. In addition to notable thinkers, cases of
blasphemy were also mostly directed against adherents of the non-Sunni Islamic faith
(Ibrahim, 2013: 8). Investigating authorities resorted to questioning suspects on their
12
beliefs and faith, which was in violation of their right to privacy and freedom of
conscience (Ezzat, 2014: 23). In the aftermath of the January 25th Uprising, there was
a marked increase in reported cases of religious blasphemy. They rose particularly
during periods surrounding political events, possibly due to the increased politicisation
of religion. The cases extended to including petty fights between people, which
developed into attacks on religions, or political discussions that were then interpreted
as attacks on a religion. There was a noted failure by security forces which neglected
to secure the protection of those accused of blasphemy from attacks by the wider
community, for both the accused and their families (Ibrahim, 2013: 8-9).
A heated debate is whether certain forms of speech constitute hate speech
against religious groups or criticisms against religion. This debate is based on different
cultural perceptions. For example, the French magazine Charlie Hebdo’s satirical
cartoons of Islamic figures is considered by state-owned Egyptian newspaper al-
Ahram, to be a form of contempt of religion and a misuse of freedom of expression. A
number of al-Ahram articles stated that the failure of restricting insults to religions is
the reason behind the January 2015 attacks on Charlie Hebdo’s offices in Paris (Al-
Sheikh, 2015). This is based on the understanding that the critiques of religion are not
targeting the religion itself but the adherent of the religious creed, constituting hate
speech. While Western notions stress the concept of freedom of expression when
referring to Charlie Hebdo, it has been interpreted differently in other contexts.
The case for religious blasphemies, primarily against Islam, has led to much
popular upheaval, which was promptly addressed by authorities. However, hate
speech against other religious minority groups is rarely prosecuted. For example, an
13
anti-Muslim movie, Innocence of Muslims, was circulated on YouTube and provoked
mass protests mobilised by the Islamist community in Egypt, as well as in other places
in the Arab and Islamic world (Talaat et al., 2012). The producers of the movie were
sentenced to death by the State Security Court for “provoking sectarianism,
blasphemy and endangering national unity and social peace” (MENA, 2013). This
ruling was approved by Egypt’s religious establishment (MENA, 2013). On the other
hand, forms of hate speech directed against other religious and ethnic communities
receive less attention. Forms of hate speech against religious groups were conducted
at times by state-funded media, such as Egyptian TV, in the case of the Maspero
protests on October 9, 2011 (Association of Freedom of Thought and Expression,
2014: 19). Other forms of hate speech against religious groups were also conducted
by private channels (such as some Islamist channels) supporting the discourse that
led to the lynching of four Shiites in Zawyat Abu Musalam, Giza, in 2013 (El-Gundy,
2013). A lack of protection of minorities has led to impunity of the perpetrators and the
repetition of these incidents (Thabet, 2015).
Hate speech against ethnic and LGBT groups: As a conservative society,
Egyptian mainstream culture rejects members of the LGBT community, viewing them
as perverse and a threat to social peace. This has not only manifested itself in the
media, but also in the prosecution of such conducts. While there is no law punishing
LGBT acts, it is often prosecuted as a form of “debauchery” and public indecency
(Whitetaker, 2014). Mainstream media programmes have presented this community
as responsible for many social ills, as well the spread of diseases such as HIV
(Kingsley, 2014).
14
The least prevalent form of hate speech is against African residents or refugees
in Egypt and is based on racist perceptions of people of colour as violent. In this
respect, a prominent newspaper entitled its report the “Niggers: The gangs of black
horror” (Sharif, 2015). This form of hate speech is not tied to political ideas, unlike the
nationalist form described above, which is politically motivated.
Egyptian law and hate speech
There is no particular law against hate speech in Egyptian legislation (Ezzat et
al., 2014: 4). However, there are laws against religious blasphemy and against
incitement to crime. The former protects Islam, Christianity and Judaism, which are
recognised by the constitution as requiring protection from insult. These laws and their
implementation fail to protect social, political and other religious groups.
Religious blasphemy: Religious blasphemy is an offence under the Penal Code
of 58/1938 (Ezzat, 2014: 15). It is directed against insults or critique of Islam,
Christianity, and Judaism, whose adherents are allowed to carry out their practices in
public. In this respect, there are criticisms that it is discriminatory against other
religions (Ezzat, 2014: 6), such as Baha’ism, which are not protected under the laws,
nor are their followers allowed to practice their religions in public. Furthermore, it is
criticised for being implemented in a discriminatory manner. While the text of the laws
nominally protects Islam, Christianity, and Judaism from public criticism, it has mostly
been implemented for the protection of Islamic beliefs from critique or insults. In this
sense, its application has been restrictive of freedom of speech and freedom of
conscience called for by international laws (Ezzat, 2014: 6), while failing to protect a
large range of marginalised groups.
15
Incitement: Hate speech may sometimes be prosecuted if it includes
incitements to commit a crime. The Penal Code gives a broad definition for incitement
that includes all serious and petty crimes or offences. Offences must take place for
this law to be applicable, otherwise there is no criminalisation of incitement in itself
(Ezzat et al., 2014: 24). Second, in incitement for some serious crimes (e.g. murder),
inciting to topple the regime, incitement of soldiers not to obey orders, incitement of
discrimination and incitement to disobey laws, are forms of incitement that the Penal
Code penalises where no crime needs take place (Ezzat et al., 2014: 26-27). The
problem with this definition is that it is expansive and may provide unnecessary
restrictions on freedom of speech (Ezzat et al., 2014: 4). Further, there is no clear
definition of hate speech as a form of speech that should be restricted. Thus, the
implementation of these laws has led to the restriction of freedom of speech, but not
to the reduction of hate speech.
In conclusion, the aftermath of the January 25th Uprising in 2011 has witnessed
a period of a chaotic state of media freedom, which in some cases has led to politicised
discourses and low professional standards and professional ethics. This politicised
discourse was polarised further by the political events leading to the June 30th 2013
incidents in Tahrir Square. Nationalist and xenophobic discourses have also been
used as hate speech against foreigners. Furthermore, there is evidence that hate
speech against religious groups has resulted in much popular upheaval since 2011.
These different forms of hate speech have not been restricted due to deficiencies in
Egyptian laws, which do not have provisions against hate speech per se. Current
16
provisions therefore led to the restriction of freedom of speech, but fall short of
restricting all forms of hate speech.
4.2. Kenya: Responses to electoral violence: The problem of hate speech,
peaceocracy and censorship (Alisha Patel)
Kenya has experienced electoral violence, particularly of an inter-ethnic nature,
since the introduction of multi-party politics in 1991. In a political environment
characterised by ethnic clientelism rather than a programmatic, or policy-based
agenda, as well as a winner-take-all view of political power and its economic spoils –
ethnicity has been heavily politicised, and violence diffused and easily ignited (Mueller,
2008). Since the adoption of multi-party politics, the language of political discourse
emanating from political incumbents and aspirants increasingly became one of insult,
threat and accusations, and sought to dehumanise and denigrate opponents. For
example, in the early 1990s, Moi and his ministers used the rhetoric of fear to oppose
multi-partyism, and “some regime supporters themselves appeared to advocate
violence against political dissidents, publicly urging citizens to cut off the fingers of
multi-party advocates, and to arm themselves with rungu (knobbed sticks) and spears
to crush opponents of one-party rule” (Somerville, 2011). The Kenyan National Human
Rights Commission report, Still Behaving Badly (KNCHR, 2007), stated that the 2007
election had been characterised by the continued use of insults against opponents,
threats of violence, and effective incitement to violence. It reported covert hate speech,
defamatory and unsavoury language continued largely unabated, and Kenyans
continued to condone and cheer hate speech and had become active agents of
proliferation of hate campaigns against politicians and fellow Kenyans (KNCHR,
2007).
17
The problem of hate speech in Kenya, and in particular the tensions between
freedom of speech and dangerous and/or offensive speech, must therefore be
considered in the context of a democratic transition in a deeply divided society with a
long history of violent elections. The 2007 and 2013 elections reflect upon the
difficulties of navigating this complex nexus of peace, conflict, consensus, debate, the
right to protest and free and fair elections to achieve democratic outcomes and ideals.
The contested result of the 2007 presidential election, which saw the re-election
of Mwai Kibaki as President, culminated in an unprecedented scale and spread of
violence that left more than 1,200 people dead and over 600,000 displaced. This
atrocity was fuelled by hate speech acts by multiple actors and in various arenas; for
example, through the media, particularly vernacular radio stations, as well as through
SMS messages, and at rallies. In this setting, hate speech took the shape of
inflammatory speech acts that aroused suspicion, fear and hatred between ethnic
groups – and ultimately incited inter-communal violence in an already deeply divided
and ethnically polarised society. For example, Kass FM, one such radio station,
broadcast comments by politicians and commentators on the need for the “people of
the milk” to “cut grass” and their complaints that the “mongoose” had come and “stolen”
their “chicken”, in what amounted to a clear attack on particular ethnic groups. At the
same time, the mainstream media were accused of demonstrating a high degree of
bias towards certain political actors, as well as failing to prevent the dissemination of
party propaganda and the violent rhetoric of many political leaders (Somerville 2011).
18
The 2010 Constitution of Kenya, drafted in the shadow of the 2007 elections
and post-election violence, makes explicit reference to hate speech. While not
explicitly defined, it involves “advocacy of hatred that constitutes ethnic incitement,
vilification of others or incitement to cause harm”. Further, the Constitution outlines
that any right to “freedom of expression” which uses such language, does not extend
to hate speech (KLR, 2010). The National Cohesion and Integration Commission
(NCIC) was created in 2009 as a body that would tame the use of hate speech, and
promote national cohesion and integration. The mandate of the Commission is to
facilitate and promote equality of opportunity, good relations, harmony and peaceful
coexistence between persons of different ethnic and racial backgrounds in Kenya and
to advise the government in this respect (KLR, 2010). The 2008 National Cohesion
and Integration Act (NCIA) defines hate speech as:
A person who –
[a] uses threatening, abusive or insulting words or behaviour, or displays any
written material; [b] publishes or distributes written material; [c] presents or
directs the performance the public performance of a play; [d] distributes, shows
or plays, a recording of visual images; or [e] provides, produces or directs a
programme; which is threatening, abusive or insulting or involves the use of
threatening, abusive or insulting words or behaviour commits an offence, if such
person intends thereby to stir up ethnic hatred, or having regard to all the
circumstances, ethnic hatred is likely to be stirred up. Ethnic hatred means
hatred against a group of persons defined by reference to colour, race,
nationality (including citizenship), or ethnic or national origins. (KLR, 2008)
The constitutional regulation of hate speech, particularly in a transitioning
democracy raises questions as to the reach of government control over political
language – specifically, how far it extends over public opinion and journalistic practice.
19
Laws on hate speech – particularly given the context in which they have been drafted
– have the potential to lead to either active or implicit censorship of political discourse
in the name of fostering “peace”. This is important when it interplays with meaningful
and important criticism on government policy agenda. These are all vital components
of a vibrant and meaningful democracy.
The 2013 elections and electoral campaign must therefore also be viewed
through the lens of the 2007 elections, and the terrible legacy of politically motivated
ethnic violence. Given the role of hate speech in fuelling electoral violence, responses
to this must be taken into consideration. The Umati project (2013), was one such
initiative that monitored the dissemination and propagation of hate speech in the most
prevalent languages spoken in Kenya, particularly through social media outlets. The
need to study how this is done in several languages highlights the constant evolution
of hate speech, as well as the need to monitor, analyse and regulate speech acts
across a variety of forums, particularly given the growing importance of social media.
Having been accused of being partially responsible for the 2007 post-election
violence, the traditional print and broadcast media also played a different role in this
context. Arguably there was a heavier degree of self-censorship during the 2013
election campaign, with Kenyan journalists valuing “peaceocracy”, aligning this with
responsible journalism, and in the process failing to fully engage with and scrutinise
sensitive electoral debates, and therefore neglect to play an important role in achieving
democratic outcomes. News coverage engaged heavily with political figures urging the
public to ensure a peaceful election, and crucially, to accept the election result and not
protest, and carefully avoided any content with the potential to trigger conflict; while
20
editorials and advertisements also highlighted the need for peace given the memory
of the 2007 elections. This echoed the government’s argument that any public speech
likely to instigate instability or threaten national unity was illegitimate, irrespective of
whether this might impinge journalistic independence and/or undermine democratic
values.
4.3. Serbia: Hate speech and a legacy of the past (Davor Marko)
When discussing hate speech in the Serbian media, the first thing that comes
to people’s minds is the period of the 1990s. During that time, the most influential
media constituted the so-called “patriotic front” with directors and editors-in-chief loyal
to Slobodan Milošević and his regime, enabling him to control over 90 per cent of the
media space (Mazowiecki, 1995: 35). The Milošević regime misused mainstream
media for the sake of propaganda, by employing explicit hate speech and portraying
others as enemies (Kurspahić, 2003; Thompson, 1999). Using the media as a tool for
manipulation over Serbian citizens, Milošević’s regime of fear manipulated
information, with the intention to re-direct the audience’s attention from the real
problems (economic and political), and focusing it elsewhere, such as on the fear of
Islam, or from inner or external political enemies. Describing the role of propaganda in
the Serbian regime, Podunavac refers on Tacitus’ “corrupted discourse”, known today
as propaganda, and outlining the division between friend and enemy (minority vs.
majority, Serbs and others, citizens and patriots, nationalists and cosmopolitans), as
the basic reproductive principle of power (Podunavac, 2006: 261-286). Propaganda,
used during the war(s) in the former Yugoslavia, was based on several principles: the
purity of collective identities, the synergy of ethnicity, religions, and nationality, the
notion of the “enemy”, and the narrow interest of political elites. “Communities of fear
21
were created out of communities of interest”, where ethnic hatred and fear were the
result and those feelings still remain today (Ignatieff, 1997: 38-54).
Democratisation and media: Democratisation in Serbia took place only after
2000, when Milošević’s regime was overthrown. The newly elected, pro-European
government established a new legal framework for the media, under the influence and
guidance of the European Union, The Council of Europe, and the Organization for
Security and Co-operation in Europe. Within the first, usually labelled as
modernisation, phase of media policy in Serbia, which lasted from 2000 to 2003,
political actors established a consensus on EU accession and applied European
standards in the sphere of the media; in terms of privatisation, self-regulation,
establishment of public service, and using expertise from civil society and professional
associations (Matić and Valić Nedeljković, 2014). This is the period when the most
important laws, including those that regulate hate speech, were adopted.
The Serbian Constitution guarantees freedom of opinion and expression, as
well as the freedom to seek, receive and impart information and ideas through speech,
writing, art or other manner (Constitution of the Republic of Serbia, 2006: Article 49).
The right to freedom of expression may be restricted by law only in certain cases, in
order to protect the rights of others. The criminal charge of “provoking ethnic, racial
and religiously based animosity and intolerance” carries a minimum six months prison
term and a maximum of ten years (Republic of Serbia, 2014: Articles 174,176,177).
Debates in 2000s - for and against the EU: As a part of the Milošević legacy,
Serbian society has been characterised with severe divisions even after the formal
22
process of democratisation had begun. Prominent public debates, along ideological
and political lines during the 2000s were shaped within the paradigm of the “first”
(backward and nationalistic) and “second” (citizen-oriented) Serbia. This paradigm
derived from the 1990s when the entire society, as well as the media, was divided
between those who supported the regime of Milošević and those who opposed it
(Čolović and Mimica, 1992).
On the eve of the general elections in 2008, these lines of divisions were
mirrored in mutually exclusive discourses on the future of Serbia. The harsh debate
was forged by three dominant political streams, each representing unique, and
mutually excluding, ideological orientations. The Democratic Party (DS) with its
coalition partners (later including the “reformed” Socialistic Party of Serbia, whose
founder and President was Slobodan Milošević), opted for the European path for
Serbia which they considered as an ultimate political goal, which would bring
prosperity and wealth to Serbian society. The DS through its affiliate media employed
the language of fear, warning Serbian citizens that two other, conservative and anti-
European, political blocs would lead Serbia to isolation, with no economic prosperity
and direct investments.
Two other blocs, one conservative (led by The Democratic Party of Serbia,
DSS) and the other ultra-nationalist (represented by The Serbian Radical Party, SRS)
were not in favour of EU integration. While DSS and its allies claimed that Serbia had
more important things to do, mainly to protect its territory in Kosovo and Metohija
23
(“Kosovo is heart of Serbia”) was the main message of this political option).
3 SRS
blamed both political parties for causing economic, political and identity crisis during
the eight years of their government. Both sides opted for cooperation with Russia.
There were not many explicit examples of hate speech during the 2008 election
campaign, but mutual accusations and sophisticated language was employed. These
were messages that polarised the Serbian public and were framed within tensions and
deeply rooted emotions and collective memory.4
Current practices: According to the International Research & Exchanges Board
Media Sustainability Index for 2015, Serbia has an unsustainable mixed media
system. This means that “the country minimally meets objectives, with segments of
the legal system and government opposed to a free media system” (IREX, 2015: 116).
Compared to previous years, there is a drastic drop in rankings in each of the
categories, primarily due to economic and political downturns. Following the elections
of March 2014, in which the leading Serbian Progressive Party won 158 out of 250
seats in the National Assembly (with 48.35 per cent of the popular support), the media
landscape in Serbia was affected by constant political and economic problems. This
situation in Serbia “… has had an adverse effect on the media, with an extension of
control and censorship, including an increase in self-censorship, which pervades the
media industry: critical reporting is deemed seditious” (IREX, 2015: 115). There has
been no serious effort by the current regime to improve conditions for freedom of
3 Public speeches of the former DSS president Vojislav Koštunica are available on:
http://dss.rs/category/govori-i-analize/page/11/
4 As the 2008 elections demonstrated, the pro-EU bloc led by the Democratic Party gained 38.42 per
cent of the votes, while anti-EU parties got 41 per cent - 29.46 per cent of the voters supported the
Serbian Radical Party while 11.,62per cent of citizens voted for the Democratic Party of Serbia. See:
Republic of Serbia - Republic Institute for Statistics. Parliamentary Elections 2008. [Online]. Available
from:
http://webrzs.stat.gov.rs/WebSite/repository/documents/00/00/24/45/Parlamentarni_Izbori_2008.pdf
24
expression and access to information. In spite of the adoption of new laws, there was
no adequate response to violations against the media. In the past year, the most
popular political programmes on several television stations that fostered public
debates were cancelled. Critical discussions are limited to social networks, while
authorities have also reportedly favoured tabloids and newspapers that provide
salacious content (IREX, 2015: 118).
Hate speech in the Serbian context has now moved to the online sphere, and
traditional Serbian media (television, radio, press) no longer entertain that kind of
public language, with the exception of a few tabloids that are closely tied to the
incumbent regime and instructed on how to humiliate and blame political others. In the
online sphere, hate speech takes the form of comments on social networks and
websites. The State of Serbia is taking active measures against hate speech on the
internet, primarily through a National Committee for the Fight Against Hate Speech,
and by joining the No Hate Campaign, launched in 2013 by The Council of Europe.
Through the activities of this national committee, more than 10,000 high school
students have participated in workshops, as well as activities promoted by an online
campaign called “No hate speech” (Council of Europe, 2015).
4.4. South Africa: Reflections on hate speech (Wallace Chuma)
The issue of racist (and other forms of) hate speech in South Africa today must
be considered against the historical context of legislated racial segregation commonly
known as Apartheid. Before the attainment of democracy in 1994, many of the
country’s laws were overtly racist. The country’s transition to democracy was birthed
by negotiations between the progressive liberation movements and the ancient
25
regime. As is the case with negotiated transitions, compromises are made in the
process, with the effect that the new dispensation will consist of strong elements of
both the new and the old, which often sit uneasily together.
With regard to hate speech, especially racist hate speech, the sensitive history
of racism and the desire to create a post-Apartheid democratic “rainbow nation”
characterised by among other things non-racialism, non-sexism, etc., the country’s
founding fathers included a clause in the Constitution outlawing it, while at the same
time being careful not to infringe freedom of expression. Section 16(1) of the
Constitution makes very liberal and explicit provisions for freedom of expression, but
this is subject to the limitation that such freedom must not extend to: a) propaganda
for war; b) incitement to imminent violence and c) advocacy of hatred that is based on
race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
In addition to the Constitution, the regulation of hate speech is also enforced
through laws such as the Film and Publications Act and the Promotion of Equality and
Prevention of Unfair Discrimination Act.
5 Section 10 of the latter, for example, prohibits
any person from publishing, propagating, advocating or communicating words directed
against another person based, amongst others things, on that other person’s race,
sex, gender, sexual orientation or foreign nationality; or if those words could
reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or
to incite harm; [or] promote or propagate hatred.
5 See, for example: Section 16 (d) of Films and Publications Amendment Act, 2009. [Online].
Available from: http://www.gov.za/sites/www.gov.za/files/a3_2009.pdf; and the Preamble to the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. [Online]. Available from:
http://www.justice.gov.za/legislation/acts/2000-004.pdf
26
Conceptually, the issue of defining and regulating hate speech in the context of
a transitioning democracy with a history of repression presents an existential
conundrum where on the one hand freedoms of expression so inalienable to
democracy must be respected, and on the other forms of expression which bring back
memories of yesteryear or lead to marginalisation or physical harm to others, need to
be censured one way or the other. Hate speech may deter political and social
participation by its victims, while banning it may likewise deter participation by some,
hence the conundrum.
Neisser (1994: 108) suggests two approaches to hate speech: the ethical or
intrinsic perspective which condemns unjustified harm to others, “whether or not this
harm has pragmatic consequences for the life of the community”, or the instrumental,
consequentialist or utilitarian perspective, which focuses on the societal
consequences without making a priori moral judgements. Each of these approaches
has its pros and cons. South Africa offers some interesting recent instances of hate
speech, which reflect the complexities of drawing lines around hate speech.
Racist hate speech: One fairly recent case which attracted emotive public
debate about hate speech, involved the singing of a struggle song, “Shoot the boer,
shoot the farmer” by former African National Congress (ANC) Youth League Leader,
Julius Malema (De Vos, 2011). The song was a rallying song during the anti-Apartheid
years. However, in the post-Apartheid era, was there a place for these kinds of songs?
This was the question. The matter was brought to court against Malema by the pro-
Afrikaner activist group Afriforum, and the Judge ruled that the song constituted hate
speech and therefore should not be sung. This ruling attracted criticism from the ANC
27
and its members continued to defy the ban, in some cases modifying the tunes.
Ironically, Malema became a sort of celebrity out of this. One of the central questions
arising out of this case is whether having strict hate speech codes may be detrimental
to the historically oppressed, while mustering sympathy for bigots, racial or otherwise.
In South Africa, for example, the country’s poor often invoked anti-Apartheid narratives
(including songs, toyi-toyi dancing, etc.) during the so-called “service delivery
protests”, to highlight the continuation of “Apartheid-type” restrictions to basic services
in the context of neoliberal economics. Would branding some of these songs as forms
of hate speech, where anti-Apartheid songs could not conceivably ignore the issue of
race anyway, not have the effect of marginalizing the formerly oppressed who still live
below the poverty line and have not yet experienced the material benefits of
democracy two decades later? The other, related question would be whether strictly
legislating against hate speech in this case would curtail the possibility of inter-group
dialogue necessary to reduce discrimination.
Hate speech and xenophobia: The xenophobic violence of 2008 and 2015 in
South Africa attracted, among other things, debate about whether certain forms of
expression had either ignited or exacerbated the violent acts against Black non-South
Africans living in South Africa. In 2008, for example, the tabloid Daily Sun was brought
before the Press Ombudsman for consistently reporting on foreigners as “aliens”. The
complainants, who included the Media Monitoring Project and the Consortium for
Refugees and Migrants in South Africa argued that the continuous deployment of the
“alien” term had the effect of further generating hatred towards foreign nationals.
Although the Press Ombudsman ruled in favour of the newspaper, the case drew
widespread public attention (and in some cases condemnation), and interestingly in
28
its coverage of the xenophobic attacks in 2015, the same paper was more cautious
and avoided the “alien” label.
The other, more recent case, relates to the utterances of the Zulu King Goodwill
Zwelithini in March 2015. Addressing his subjects, the King said that foreigners (non-
South African Blacks), were messing the streets and must go back to their countries
of origin. A few days after his speech, xenophobic attacks began in KwaZulu Natal,
his province, before spreading to the region of Gauteng, and critics have argued that
these attacks were at least in part fuelled by the Zulu king’s utterances. The King was
taken to the Human Rights Commission, and the matter is currently being investigated.
Constitutional law expert Pierre de Vos (2015) has argued that there are sufficient
grounds to convict King Goodwill Zwelithini on contravention of the Promotion of
Equality and Prevention of Unfair Discrimination Act. The King has, of course, denied
inciting any violence, and argued that he was expressing an opinion. What the South
African case studies above suggest, is that in transitioning democracies emerging from
racial repression, regulating hate speech presents the conundrum of promoting and
facilitating freedom of expression while at the same time ensuring that particular forms
of expression do not transcend certain sensitive borders with the possible outcome of
undermining the very foundations of the democracy.
7. Conclusion
This key concept paper has outlined the idea of hate speech, its relationship to
freedom of speech, as well as the legislation that elucidates the concept at the national
and international level. The concept of hate speech is central to debates over the role
29
of the media in fostering democratic processes and outcomes, and is unique to the
specific media landscape, journalistic practices of a country, and the degree of
government control of the media. Through an exploration of events and debates in the
four county case studies of the MeCoDEM project: Egypt, Kenya, Serbia and South
Africa, this paper has highlighted that considerations of the context in which debates
over hate speech occur are extremely important, particularly in those countries that
are transitioning to democracy and with a history of conflict. A comparative approach
therefore invites further discussion on a number of themes to better understand the
nature, as well as transmission and impact of hate speech.
Firstly, all four case studies highlight that the issue of hate speech becomes
more salient and prevalent during periods of political and/or economic upheaval. In the
case of Egypt, this was during the uprisings and continued impact of the Arab Spring
on political transitions and government responses. Hate speech has taken on
xenophobic, political, religious and cultural forms. In Kenya, elections proved deadly
given histories of ethnic grievances and conflict, as well as a winner-takes-all system
of politics. In Serbia and South Africa, we are also able to see the problem of hate
speech becomes particularly contentious during periods of economic downturn,
contributing to xenophobic speech. The precarious economic and political situation of
transitional societies exacerbates the risks of practices such as hate speech to be
allowed by parties motivated by the desire for political power.
Secondly, the case studies highlight the relationship between hate speech and
the media. In most – if not all – of these expositions, the media is far from being an
independent facilitator of democratic outcomes, performing a challenging and
30
educational role for the public. Instead, government control of mainstream media
channels has led to high levels of censorship as well as hostility towards certain
political or socio-economic groups – crystallising the issue of journalistic best practice.
For instance, the tight grip of Milošević over the Serbian media led to propaganda that
was centred upon the fear of Islam, and internal or external political enemies.
Government control of the media contributes to an environment where hate speech
continues unfettered and reflects the government view of certain minority groups. In
this way, governments are able to set the terms of the political debate, constraining
various opinions, which are important for the realisation of a meaningful and vibrant
democracy. The media can often serve as the direct transmitter of dangerous speech
acts, which have uniformly led to violent outcomes. This most notably occurred in
Kenya during the 2007 elections and post-election violence, where journalists and
radio stations presented overt, albeit coded, messages to attack and kill certain ethnic
groups following the result.
Hate speech is also linked to memory. Crucially the historical context in which
the hate speech act occurs has lessons for the present. In South Africa, the pernicious
and widespread effects of Apartheid not only shape legislation on hate speech today,
but also have led to grave socio-economic imbalances. In Serbia, the impact of the
Milošević regime has led to severe divisions between groups, and therefore
widespread impact on democratisation processes as well as the forms that hate
speech takes. Appreciation of the historical context in which instances of hate speech
and alleged hate speech occur, as well as the reactions to it cannot be underestimated.
This paper has highlighted that context is integral to fully understanding hate speech,
as this outlines the specific relationships between ethnicity, religious affiliation, identity
31
and political environments; and how conflicts regarding these arise in cultures and
societies that are already burdened by internal divergent factors.
32
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