Online Reporter
Trust Maanda
Legal Position
MOST constitutions have a Bill of Rights.
That is a section which states the rights that all persons are entitled to. The Bill of Rights provides what rights a person can enjoy.
These rights are many and include right to life, health, shelter, freedom of assembly and association. The list is endless.
However, these rights have limitations. Except for a few rights, rights are not absolute.
One of these rights is freedom of expression.
The Constitution provides for the right to freedom of expression as follows in Section 61.
It says: 61 Freedom of expression and freedom of the media
(1) Every person has the right to freedom of expression, which includes—
(a) freedom to seek, receive and communicate ideas and other information;
(b) freedom of artistic expression and scientific research and creativity; and
(c) academic freedom.
Freedom of expression includes the right for people to express themselves and that includes seeking, receiving and communicating ideas and other information.
This means that a person can assert their right to receive information as part of freedom of expression. They have a right to give the information or communicate their ideas or impart their information to others.
Those rights as stated earlier, has a limitation to it, imposed by the same Constitution.
Section 61(5) of the Constitution excludes certain information from being a part of the right to freedom of expression. It reads as follows: (5) Freedom of expression and freedom of the media exclude— (a) incitement to violence; (b) advocacy of hatred or hate speech;
(c) malicious injury to a person’s reputation or dignity; or (d) malicious or unwarranted breach of a person’s right to privacy.
Therefore, freedom of expression is not an absolute right, and is limited in certain circumstances.
One of the circumstances is incitement to violence.
No person is allowed to incite violence claiming to be doing it as an exercise of freedom of expression.
The same goes for hate speech.
You cannot make any communication whether verbally or in written, attacking or threatening, insulting or degrading a group or individual based on attributes like race, religion, or gender or other grounds, and claim that to be within freedom of expression. Hate speech promotes violence, discrimination, or hostility and is often used to dehumanize minorities. Key forms of hate speech include racist, slurs, as well as dehumanising language and promotion of hatred when it causes direct harm, infringes on others’ rights, or threatens public safety.
Speeches that promote hatred of, contempt for, or ingrained prejudice against minorities, women and girls are also hate speech.
Hate speech manifests in many forms including through sexist attitudes, sexual objectification, violence, and enforcing rigid traditional gender roles to keep women in a lower social status.
This is why the Constitution and other laws impose restrictions which include prohibitions on incitement to violence, defamation, obscenity, and other threats.
The Constitution restricts this right where it is reasonable justifiable to do so necessary and proportionate in order to protect national security, territorial integrity public safety. prevent disorder or crime.
Section 86 of the Constitution, besides the limitations stated in Section 61 provides for the justification of the limitation.
It says: 86 Limitation of rights and freedoms
(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors.
Every person must exercise their right reasonably and responsibly with due regard to the rights and freedom of others. That general limitation provision permits a law to limit the right, wherever the limitation is fair, reasonable, necessary and justifiable in a democratic society. Limitation may be to protect other people’s dignity.
The laws of defamation limit freedom of expression when it affects the reputation of other people. You cannot defame people and call it freedom of expression. The law does not permit the publication of obscenities. Material deemed obscene, falls outside free speech protection. Speech that violates copyright or trademark laws is prohibited. There are a laws that protect copyright.
The criminal Law Code creates an offence for insulting the President. There are limits to the language one can use in criticising the President.
The law also prohibits language that scandalises the court or that speaks disparagingly of judges.
You can criticise their judgment, but that has to be through use of temperate language. You can be in contempt of court. Basically, rights have to be enjoyed responsibly and in consideration of the rights of others.
TRUST MAANDA is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
