Twenty years after the Windhoek Declaration on press freedom

official. It took over 50 <strong>years</strong> until
<strong>the</strong> International Criminal Tribunal
for Rwanda (ICTR) in 1998 handed
down <strong>the</strong> world’s first conviction for
incitement to genocide.
ICTR has since played an important
normative role in giving clarity to
jurisprudence on incitement to
genocide through its numerous
indictments and prosecutions in
<strong>the</strong> so-called media cases. This can
be highlighted by <strong>the</strong> Prosecutor v
Nahimana, Barayagwiza and Ngeze
case where three individuals alleged
to have been <strong>the</strong> masterminds
behind a media campaign to desensitise
<strong>the</strong> Hutu population and
incite <strong>the</strong>m to murder <strong>the</strong> Tutsi
population were prosecuted and
convicted.
Ferdinand Nahimana and Jean Bosco
Barayagwiza were members of <strong>the</strong>
steering committee that founded
Radio Television Libre Des Mille
Collines (RTLM). Hassan Ngeze was
<strong>the</strong> owner, founder and editor of
<strong>the</strong> popular and widely distributed
Kangura newsletter.
How have states identified
incitement to genocide, violence,
discrimination and hatred in
Africa so far? While incitement to
violence or hatred – including by
politicians, community leaders or
journalists – has actually resulted in
massive violence in many countries,
<strong>the</strong> continent is replete with a
patchwork of concepts, approaches
and interpretations.
This means <strong>the</strong>re is a significant
difference or variation across
countries in how <strong>the</strong> prohibition
and <strong>the</strong> threshold of incitement
have been defined by laws and
regulations. Seldom is <strong>the</strong> wording
of article 20 of <strong>the</strong> ICCPR found
enshrined in domestic legislation.
Indeed, some domestic laws fail to
refer to “incitement” as such.
In Kenya, <strong>the</strong> National Cohesion
and Integration Act article 13 uses
<strong>the</strong> terms “threatening, abusive or
insulting”. South Africa’s Promotion
of Equality and Prevention of Unfair
Discrimination Act article 12 makes
reference to “incite harm; promote
or propagate hatred,” while <strong>the</strong>
Films and Publications Act article 29
uses “incites to imminent violence”.
In Zimbabwe, <strong>the</strong> Law and Order
(Maintenance) Act) uses “promotes
feelings of hostility” on <strong>the</strong> one
hand and on <strong>the</strong> o<strong>the</strong>r talks about
“abusive, insulting and threatening
language in <strong>the</strong> Miscellaneous
Offences Act. Uganda and Rwanda
have ano<strong>the</strong>r conceptualisation
of incitement as sectarianism.
However, sectarianism is not
defined but carries connotations for
separatism or secessionism.
This patchwork of law has in some
countries been used to chill media
freedom and gag journalists from
giving voice to <strong>the</strong> voiceless.
For <strong>the</strong> media not to be caught
up as a propagator of hate, Article
19 proposes that journalists
should demonstrate a moral and
social responsibility to combat
discrimination and promote
intercultural understanding.
One big lesson is that media
pluralism and diversity offers <strong>the</strong>
safest way to ensure <strong>the</strong> media is
not captured by a single group of
powerful people who could <strong>the</strong>n
use it as a tool for incitement – as
was <strong>the</strong> case in Rwanda.
Africa’s legal environment — enabling
or disabling?
By Henry Maina
The second decade of <strong>the</strong> 21st
Century is a fitting moment to
look back at 20 <strong>years</strong> <strong>after</strong> Africa’s
second liberation. This is necessary
given <strong>the</strong> revolutions in <strong>the</strong> Arabworld
and <strong>the</strong> recent less publicised
resistance in Angola, Uganda, and
Swaziland.
In this context, how is African freedom
of expression, including freedom
of <strong>the</strong> media, being protected
by law?
The 1991 <strong>Windhoek</strong> <strong>Declaration</strong>
was endorsed 10 <strong>years</strong> <strong>after</strong> <strong>the</strong>
66 | Media in Africa - 2011
“...promote freedom
of expression, in
particular freedom
of <strong>the</strong> press
and fostering a
professional media”.
continent had its first binding
instrument on fundamental rights
adopted — <strong>the</strong> African Charter on
Human and Peoples’ Rights (ACHPR).
Article 9 of <strong>the</strong> Charter states:
1. Every individual shall have <strong>the</strong>
right to receive information;
2. Every individual shall have <strong>the</strong>
right to express and disseminate his
opinion within <strong>the</strong> law.
The Charter has since been ratified
by all African Union member states
(excluding non-member, Morocco).
In determining a communication
against <strong>the</strong> republic of Botswana,
<strong>the</strong> ACHPR affirmed that freedom
of expression under <strong>the</strong> Charter
has two arms: <strong>the</strong> right to receive