The National Cohesion and Integration Commission has created a storm – of words.
As so often with our public institutions, it is not easy to work out what they have actually tried to do. Why is communication between them and us so poor? Think of the complete shambles over the re-registration of SIM cards.
Anyway, to turn from perhaps the biggest peeve of the week to the NCIC, and what they have done: Have they banned words? Can they ban words? What else can they do about words?
On their website it is not even possible to find the famous list of obnoxious words. (Another communications mystery is why institutions are so inept in managing their websites.)
What one can find is a rather mild communication from the chairman, Rev Samuel Kobia. In terms of what the NCIC will do with this all he says is, “Any word here listed is a word that has been used as a tool to rally hate against a group of people. We will not sit and twiddle our thumbs as words are used to ignite our country.”
A WORD IS KNOWN BY THE COMPANY IT KEEPS
The list is headed “List of Words Categorized as Hatespeech.”
The heading here (a play on the old saying “A man is known by the company he keeps”) suggests that any word only has meaning in its context. It is part of a sentence. Take the word “eliminate” – one of the NCIC’s words. A politician might say that they would eliminate poverty.
But a word’s meaning also depends on who uses it, to whom it is spoken, the surrounding political context (certainly during an election period a word may take on new meanings). It will depend on where the words are spoken – the place, the event. It will depend on how the word is spoken, the emphasis, the facial expression, and the gestures that may accompany it.
It is true that the way words are understood is not just a matter of how they are spoken. Those hearing the words may read much more into them than was intended. If they have got used to a certain phrase being used in a certain way they may hear it that way even if this meaning was not intended. They may expect certain people to use certain words in a particular way – even if it was not intended. Words gather layers of meaning depending on all these factors.
Ironically, the NCIC’s list might even encourage people to understand a word or phrase in a particular derogatory or insulting way, making the commission’s work a sort of self-fulfilling prophecy.
NCIC’S ROLE
The functions of the commission concern ethnic and racial relations, and unity. Their primary role is to educate us, persuade us, enlighten us about how to respect people of other communities, avoid offensive and divisive behaviour, and how to improve ethic relations.
It can advise government, carry out research, and receive complaints about ethnic relations issues. It can make regulations (which would have to be approved by Parliament) but does not seem to have done so.
It cannot prosecute – that is take cases to the criminal courts - itself. It has to send files to the DPP with its recommendations.
It has two interesting powers in its law. It may publish the names of people who undermine, have undermined or may undermine good ethnic relations. And it may issue notices directing people to stop existing behaviour that amounts to violation of human rights on the basis of ethnicity or race.
As far as I can see, they have not used either of these powers.
Under these two – unused – provisions, they would have to be referring to named individuals, not people generally, or even politicians generally.
If they wanted to order people generally not to use certain words and phrases they could not do so without the backing of the law. They could make regulations, which are very inflexible, because of the requirement of parliamentary approval. Otherwise, I cannot see that they can tell us “These words are banned”. But I am not clear they are trying to do that.
The Constitution is very clear that “hate speech” does not have the protection of Article 33 of the Constitution (freedom of speech). The National Cohesion and Integration Act makes it a crime to utter hate speech. This can be in any form – in writing, speech, performance etc. But what is hate speech (or behaviour)?
The Act says it must be “threatening, abusive or insulting”. Generally it is expected that a person is not guilty of a crime unless they had a guilty intention or knowledge. The Act reflects this when it says it is an offence if the “person intends thereby to stir up ethnic hatred.”
But the Act goes further and says that if, in all the circumstances, ethnic hatred is likely to be stirred up by the words or behaviour an offence is committed. This is a bit worrying. A person might be convicted of a crime even though they did not realise they were doing anything wrong. It is possible that certain phrases have a different ring in different communities and a visiting politician might genuinely not know how a certain phrase would be taken.
Justice [David] Majanja held that these provisions in the Act about crimes were not unconstitutional because of what the Constitution says about hate speech not being protected. But he did not discuss whether even an offence that involved no guilty state of mind was protected.
I suggest that this constitutional protection for anti-hate speech law should cover only law that is necessary to protect from hate speech. Otherwise, anything might be constitutional – even the death penalty for hate speech. Law against hate speech may not be attacked on the basis of the right to freedom of speech, but it must still not violate the right against unfair treatment, which includes excessive punishment, or the right to a fair trial.
WHAT IS NCIC TRYING TO DO?
All this makes me think about the NCIC’s objectives. They have had difficulty getting convictions of politicians for hate speech. It is not always easy to prove what someone was intending, because of the way the meaning of words is so imprecise. And even to prove that ethnic hostility was likely may be hard – at least if ethnic hostility did not actually result from what was said. The NCIC have produced training materials on enforcing the law on hate speech.
They are trying to alert politicians (particularly) to the potential impact of common words and phrases. They may hope this will reduce the chance of politicians arguing they did not know how words would be received, and to try to ensure – so that they know that “it was likely that ethnic hatred would be stirred up”. And no doubt they hope to persuade politicians – and others – to think before they speak.
Even with a less specific purpose, the NCIC objectives are positive. The Commission is trying to make a point, maybe clumsily, but one that is important. They are entirely right that the old saying “Sticks and stones may break my bones but words can never hurt me” is not true. The words themselves may not hurt, but the anger they may stir up, or the resentment, can be very real and very dangerous. We have seen that in too many countries.
Elections should be approached and campaigning done in a way that addresses the issues. Politicians must learn to criticise their opponents in a way that addresses their capacities and their failures, but not their ethnicity, religion or their general physical characteristics.
Only “hate speech” is illegal. But one wonders how often politicians should even be talking about communities as a whole. Even mild language can be divisive, it does not need to be “threatening, abusive or insulting.” Any “them and us” talk on ethnic or religious lines will inevitably be divisive – and dangerous. The specific words and phrases may be much less important.
