Twenty years after the Windhoek Declaration on press freedom

African media should inspire
understanding, not incite hatred
By Henry Maina
Henry Maina is <strong>the</strong> Director, ARTICLE
19 Eastern Africa. He previously
worked as <strong>the</strong> Deputy Director of
Legal Resources Foundation (Kenya).
Africa states, like o<strong>the</strong>r states globally,
are allowed - and in some
respects obliged - to prohibit dangerous
speech that has a high probability
to stir violence, discrimination
or hatred.
Incitement to genocide is equally
forbidden and is an international
crime akin to war crimes and crimes
against humanity. Ironically, though,
<strong>the</strong> African Charter has no provisions
on incitement similar to those
in Article 20 of <strong>the</strong> International
Convention on Civil and Political
Rights (ICCPR). Never<strong>the</strong>less, <strong>the</strong>re
is an international consensus on
<strong>the</strong>se issues.
What remains open to debate,
however, is how states identify
hate speech – and what measures
<strong>the</strong>y take to deal with it. These
matters are sometimes a source of
conflict due to undue limitations on
freedom of expression and media
freedom. This is because it remains
a daunting task to precisely define
<strong>the</strong> crime of incitement to genocide,
hatred, violence or discrimination.
International human rights scholars
Section 1: Freedom
and commentators have provided
<strong>the</strong> three-part test as a standard
by which to assess whe<strong>the</strong>r or not
content restriction by any state is
permissible. According to <strong>the</strong> test:
• freedom of expression
limitations must be provided
by law, in sufficiently clear
terms as to make it foreseeable
whe<strong>the</strong>r or not a statement
may be deemed offensive or
permissible,
• any such restrictions must be
directed at one of <strong>the</strong> following
goals: ensuring respect of <strong>the</strong>
rights or reputations of o<strong>the</strong>rs,
or protecting national security,
public order, public health or
public morals,
• legitimate limits must be
strictly necessary for <strong>the</strong>
achievement of that goal,
including that no suitable
alternative measure exists
which would be less harmful to
freedom of expression.
The three tests make sense in legal
<strong>the</strong>ory but remain challenging in
regard to how <strong>the</strong>y may be applied
in practice.
“How have states
identified incitement
to genocide, violence,
discrimination and
hatred in Africa so
far?”
The legal definition of incitement
was not elaborated by <strong>the</strong>
Nuremberg tribunal in 1946 of Julias
Streicher, a newspaper editor, and
Has Fritzche, a radio broadcasting
Media in Africa - 2011 | 65