SO CLOSE AND YET SO FAR: COMPARING THE CRIMINALISATION OF HATE
SPEECH IN CANADA AND KENYA TO THE HATE SPEECH BILL
Karen Taylor-Vermaak*
1. INTRODUCTION
The Constitutions of Canada1, Kenya2 and South Africa3 protect both the right to freedom of
expression and the right to equality, in line with international human rights law4. Against this
backdrop of conflicting protected rights, this memorandum compares current legislation that
criminalises hate speech in the Anglo-American based jurisdictions of Canada and Kenya, with
the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill in South
Africa (‘the Hate Speech Bill’)5, currently before Parliament.
2. CANADIAN LEGISLATION CRIMINALISING HATE SPEECH
As of 1985, Canadian legislation criminalising hate speech is articulated in the Criminal Code
under the sub-categories of public incitement of hatred and the wilful promotion of hatred in
sections 319(1)6 and 319(2)7 respectively. Subsumed under Part VIII: Offences against the
Person and Reputation, Hate Propaganda, the requirement under 319(1) is the public
incitement of hatred against any identifiable group could likely lead to a breach of the peace.
* B.Proc (Unisa)
1
Part 1, The Canadian Charter of Rights and Freedoms, Constitution Act, 1982
The Constitution of Kenya, 2010(4), Section 27 – right to equality and non-discrimination, Section 33 – right to
free speech. Controversially, discrimination on the grounds of sexual orientation is not protected.
3
The Constitution of South Africa, 1996, Section 9 protects equality and freedom from discrimination; Section
16 protects freedom of expression, with limitations.
4
The right to equality and non-discrimination in Articles 1, 2, and 7 of the Universal Declaration of Human Rights
(UDHR) is given legal force in Articles 2(1) and 26 of the ICCPR. It obliges states to guarantee equal rights of
freedom of expression and protection of the law. Article 20(2) of the ICCPR requires States to prohibit through
law ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence’. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
requires countries to enact legislation making incitement to racial hatred an offence punishable by law.
5
The Prevention and Combating of Hate Crimes and Hate Speech Bill in South Africa, published in Government
Gazette No. 41543 of 29 March 2018
6
Criminal Code, R.S.C. 1985, c C-46 s 319(1) states that: ‘every one [SIC] who, by communicating statements
in a public place, incites hatred or wilfully promotes hatred against any identifiable group where such
incitement is likely to lead to a breach of the peace, is guilty of (a) an indictable offence punishable by no more
than two years imprisonment; or (b) an offence punishable on summary conviction.’
7
Criminal Code, R.S.C. 1985, c C-46 s 318(2) states that: ‘Every one [SIC] who, by communicating statements,
other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an
indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable
on summary conviction.’
2
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Under section 319(2) it is the wilful promotion of hatred against any identifiable group, by
communicating statements other than in private conversation. Protected characteristics under
these sections are include any ‘identifiable group,’ defined in section 318(4)8 as ‘any section
of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, gender
identity or expression, or mental or physical disability.’
The potential chilling effects on free speech are tamed by allowed defences on the grounds of
the statement being true9, being expressed as a good faith argument based on religious beliefs
or text10, being relevant to public interest and benefit, and reasonably believed to be true11 or
for the purpose of pointing out and removal of matters producing or tending to produce feelings
of hatred toward an identifiable group in Canada. Furthermore, no criminal proceedings can be
instituted without the consent of the Attorney General12. Although the term hate speech is not
specifically defined in those words, they are inferred by the reading of the terms ‘incitement of
hatred’ and ‘wilful promotion of hatred’ in conjunction with the definitions of communicating
and statements provided in s319(7)13. The constitutionality of Canada’s hate speech legislation
was confirmed by the Canadian Supreme Court in four landmark judgments from the 1990s14
and is frequently referenced in South African human rights jurisprudence.
2. KENYAN LEGISLATION CRIMINALISING HATE SPEECH
Legislation criminalising hate speech in Kenya is regulated by the National Cohesion and
Integration Act15 was necessitated by the post-election violence of 2007/8 which was in part
attributed to propaganda and hate speech in public and on social media16 which has been a
disturbing feature of Kenyan political culture for decades. Section 13 of the NCIA criminalises
8
Criminal Code, R.S.C. 1985, c C-46 s 318(4)
Ibid s 318(3)(a)
10
ibid s 318(3)(b)
11
ibid s 318(3)(c)
12
ibid s 318(6)
13
ibid s 318(7) states that: ‘In this section, communicating includes communicating by telephone, broadcasting
or other audible or visible means; … statements includes words spoken or written or recorded electronically or
electro-magnetically or otherwise, and gestures, signs or other visible representations’
14
In R v Andrews 1990 3 SCR 870, R v Keegstra 1990 3 SCR 697, Canada v Taylor 1990 3 SCR 892, R v Zundel
1992 2 SCR 731 the Supreme Court of Canada ruled that exposing a minority group to danger of contempt in
society limited their participation in a democratic society.
15
Act No 12 of 2008
16
Peter Onyango Onyoyo Criminality in ‘Hate Speech’ Provisions in the Laws of Kenya – Jurisprudential
Challenges 2014
9
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the use of hate speech, prohibiting the use of threatening, abusive or insulting words or
behaviour in any format if their intention is to spur ethnic hatred or if ethnic hatred is ‘likely to
be stirred up’17.
The NCIA recognises hate speech in terms of ‘ethnic hatred’; hatred against a group of persons
defined by reference to colour, race, nationality (including citizenship) or ethnic or national
origins18. This is notably inconsistent with the equal rights afforded under Section 27 of the
Constitution19 as it excludes groups of persons defined by their religion, gender, nationality,
disability, or sexual orientation20. The penalty for a hate speech crime under S13(2) is a fine
not exceeding 1 million Shillings or imprisonment not exceeding 3 years or both. Both the
legislation itself and the judiciary charged with applying has been criticised for not achieving
its intended aim of taming hate speech and promoting national cohesion and integration.
Onyoyo highlights the jurisprudential challenges of hate speech law and laments that it ‘has
been turned into a political tool to silence the opponents’21. Decisions to prosecute are
influenced by political bias on the part of the Attorney General; hate speech allegations tend to
become politically charged and risk ethnic polarization, which in turn defeats the cohesive
purpose of the law; the cost of prosecuting hate speech cases is prohibitively high; a lack of
evidence coupled with a shortage of expertise for credible investigations and an
underdeveloped jurisprudence around the interpretation of the law surrounding hate speech are
further barriers the legislation faces in achieving its aim of national cohesion and integration.
3. SOUTH AFRICA’S HATE SPEECH BILL 2018
Hate speech in South Africa is currently regulated by the Promotion of Equality and Prevention
of Unfair Discrimination Act (PEPUDA)22, which definition of hate speech was recently
declared unconstitutional by the Constitutional Court in Qwelane v South African Human
17
Act No 12 of 2008, Section 13
Section 13(3)
19
Section 27(4) of the Kenyan Constitution states: ‘The State shall not discriminate directly or indirectly against
any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin,
colour, age, disability, religion, conscience, belief, culture, dress, language or birth’
20
Sexual preference and gender identity are (controversially) not protected rights under the Kenyan Constitution,
so the omission of this category under Section 13 can be expected.
18
21
n 17
22
Act No 4 of 2000
3
Rights Commission and Another23. Under PEPUDA, hate speech is a civil wrong and not a
criminal offence. To fill this perceived lacuna in the law the Hate Speech Bill was Gazetted in
201824 with the first objective being:
‘To give effect to the Republic’s obligations in terms of the Constitution and international human rights
instruments concerning racism, racial discrimination, xenophobia and related intolerance, in
accordance with international law obligations;’ 25
It does far more than required by either the Constitution or international human law, though,
and encroaches dangerously on the right to freedom of expression. Section 4(1)26 of the Bill
sets the threshold for what qualifies for hate speech, very low and specifies seventeen
characteristics of ‘persons or groups of persons’ who are protected by the legislation. This far
exceeds those listed in PEPUDA and the Constitution and is in itself not problematic. The issue
is that this section criminalises hate speech and the sharing of such hate speech, regardless of
the context or bona fide intention for sharing. Not only does it limit free speech and robust
public engagement, which is characteristic of and encouraged in a constitutional democracy, it
would criminalise social media activism against racism, sexism and homophobia27. Other
problems with it include that:

it fails to address the underlying problems of systemic racism

it does not differentiate between forms of hate speech as per international guidelines.28

it provides for no defences beyond media freedom, academic and artistic expression

it is superfluous since the common law offence of crimen injuria together with
Criminal Procedure Act already criminalise hate speech29
23
[2021] ZACC 22
The Prevention and Combating of Hate Crimes and Hate Speech Bill in South Africa, published in Government
Gazette No. 41543 of 29 March 2018. The Bill was originally Gazetted in 2016 but lapsed.
25
The Hate Speech Bill 2018, at 2
26
In terms of Section 4(1), ‘any person who intentionally, by means of any communication whatsoever,
communicates to one or more persons in a manner that either advocates hatred towards any other person or
group of persons; or is threatening, abusive or insulting towards any other person or group of persons, and which
demonstrates a clear intention to incite others to harm, stir up violence against or bring into contempt or ridicule
any person or group of persons based on age; albinism; birth; colour; culture; disability; ethnic or social origin;
gender or gender identity; HIV status; language; nationality, migrant or refugee status; race; religion; sex, which
includes intersex; or sexual orientation is guilty of the offence of hate speech.’
27
Pierre de Vos ‘Will new hate speech bill criminalise social media activism against racism, sexism and
homophobia?’
28
The Rabat Plan of Action convened by the UN Office of the High Commissioner for Human Rights (OHCHR),
provides guidelines and recommendations for implementing Article 20(2) of the ICCPR.
29
Hugh Lane: The Hate Speech Bill - unconstitutional, undemocratic, and unnecessary (2017) Without Prejudice
Vol. 17 Issue 3 Page 20
24
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4. THE HATE SPEECH BILL COMPARED TO ITS CANADIAN AND KENYAN
LEGISLATIVE COUNTERPARTS
Neither the Hate Speech Bill nor the NCIA differentiates between private and public
statements, whereas the Criminal Code locates hate speech in the public sphere to render it an
offence and specifically excludes private conversations. In this regard both African countries
could benefit frmakingom revisiting this shortcoming as it doesn’t meet international standards
of free speech.
Where the Hate Speech Bill is overbroad and vague, the NCIA is underinclusive in terms of
vulnerable groups, and over-specific with regard to methods of information sharing, which
results in a very low threshold for hate speech. By excluding groups associated by religion,
gender, nationality, disability, and sexual orientation or gender identity, the NCIA fails to
protect vulnerable groups whose rights are required by international law standards to be
protected.
Unlike the Canadian and Kenyan legislation, the Hate Speech Bill differentiates between first
time and repeat offenders and provides for a maximum three years sentence and/or a fine and
imprisonment for a first conviction and five years or fine and imprisonment for a subsequent
conviction. Notably the sentence prescribed is longer than Canada’s two-year and Kenya’s
maximum of a three-year sentence. The NCIA specifies a fine of 1 million Shillings (equivalent
to approximately R360 000) which one could speculate that few ordinary citizens and only
wealthy politicians could afford. It is questionable whether the punitive approach by the two
African countries is rational in relation to the objectives they hope to achieve.
5. CONCLUSION
This memorandum set out to compare the hate speech laws of Canada and Kenya with the Hate
Speech Bill. In conclusion, it’s clear that the implementation of the Hate Speech Bill as it stands
will most likely further divide social groups than meet its constitutional and international
human rights law obligations. Also problematic, Kenyan hate speech laws offer limited
protection to vulnerable groups and are ineffective under political influence. However,
Canadian hate speech legislation - with the benefit of a developed jurisprudence - is both
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constitutional and effective thus providing an excellent benchmark against which Kenya and
most importantly South Africa should measure their hate speech legislation.
References
International law
The United Nations. (1948) Universal Declaration of Human Rights.
UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966,
The United Nations. (1966). International Convention on the Elimination of All Forms of
Racial Discrimination. Treaty Series, 660, 195.
The Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious
Hatred that Constitutes Incitement to Discrimination, Hostility or Violence (2012)
Legislation
The South African Constitution, 1996
The Prevention and Combating of Hate Crimes and Hate Speech Bill in South Africa, published
in Government Gazette No. 41543 of 29 March 2018
Foreign Law
The National Cohesion and Integration Act 12 of 2008, Revised 2012, Published by the
National Council for Law Reporting with the Authority of the Attorney-General, Kenya
Canadian Criminal Code, R.S.C., 1985, c. C-46
Journals
Karabo Rajuili & Nomagugu Nyathi ‘South Africa and Kenya’s Legislative Measures to
Prevent Hate Speech’ (2017) Conflict Trends
Karmini Pillay and Joshua Azriel: Banning hate speech from public discourse in Canada and
South Africa: A legal analysis of the roles of both countries’ constitutional courts and human
rights institutions (2012) 27 SAPL AT 261 – 262
Hugh Lane: The Hate Speech Bill - unconstitutional, undemocratic, and unnecessary (2017)
Without Prejudice Vol. 17 Issue 3 Pages 18-20
Articles
Peter Onyango Onyoyo Criminality in ‘Hate Speech’ Provisions in the Laws of Kenya –
Jurisprudential Challenges 2014
6
Online Articles
Pierre de Vos ‘will new hate speech bill criminalise social media activism against racism,
sexism and homophobia?’ available at http://www.constitutionallyspeaking.co.za , accessed 15
October 2021
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