Has President Mahama violated Articles 19 and 20(2) of ICCPR?

A number of prominent Ghanaians and civil society groups, including the Chairman of Peace Council, Professor Emmanuel Asante and the Media Foundation for West Africa (MFWA), have beseeched President John Dramani Mahama to refrain from making comments deemed ethnocentric against the NPP Party and its running mate, Dr. Mahamudu Bawumia.

“President Mahama while campaigning at Lawra in the Upper West Region, said the NPP will not allow Dr. Bawumia to be their flagbearer because the party is largely not in support of northerners taking up such positions” (cityfmonline.com/ghanaweb.com, 21/11/2016).

President Mahama pontificates: “Sometimes I feel sad when I see some of our northern brothers running and also doing this. They will use you and dump you. Let anything happen today and let our brother Bawumia say he is standing for president in NPP. They will never give it to him I can assure you”.

Although the right to freedom of opinion and expression stretches to queer and unpopular ideas and statements which “shock, offend or disturb”, a number of human rights treaties, conventions and declarations, including the ICCPR and the Universal Declaration of Human Rights, obligate states to prohibit all forms of hate speech.

And more so hate speech – the advocacy of hatred based on nationality, race, tribe or religion – occupies an exceptional position in international law.

Apparently, the right to freedom of opinion and expression and the appropriate permitted abridgements are detailed in international law -Article 19 of the Universal Declaration of Human Rights and Articles 19 and 20 of the International Covenant on Civil and Political Rights.

It must, however, be noted that free speech does not give the right to individuals to say or write whatever they want, whenever they like, without permitted abridgement.

The fact of the matter is that freedom of opinion and expression may be subject to restrictions, but these shall only be such as are provided by law and are necessary: “For respect of the rights or reputations of others; for the protection of national security or of public order (order public), or of public health or morals”.

It must however be emphasised that free speech is an inalienable right to seek, receive and convey information and ideas of all kinds, by any means which may be deemed appropriate.

In other words, the right to freedom of expression denotes the ideas of all kinds, including those that may be deemed offensive.

That said, the exercise of freedom of opinion and expression carries with it special duties and responsibilities. Take, for instance, in Ghana, our constitution has detailed freedom of opinion and expression; it is, however, subject to permitted abridgment.

As a matter of fact and record, freedoms are restricted in the public interest on grounds of national security, to preserve public order, to protect public health, to maintain moral standards, to secure due recognition and respect for the rights and freedoms of others or to meet the just requirements of the general welfare of a democratic society.

Nevertheless, freedom of opinion and expression is not absolute and must of necessity be subject to limitations on the above lines. And more so the right of free speech and expression does not extend to sedition, slander, defamation and obscenity.

Having said so, we must not and cannot lose sight of the fact that most wars, crimes and genocides which were perpetrated against humanity, were arguably expedited through the use of hate speech aimed at securing popular support for illegal and violent action.

Apparently, this can be witnessed continued in the past and in the modern era. For we can attest to the Nazi hate speech which preceded the Holocaust, the Radio and Television hate speech which preceded the Rwandan Genocide and al-Qaeda hate speech which preceded the attacks on ‘World Trade Centre on September 11, 2001.

In hindsight, we can infer that hate speech could spell doom for a nation. So it is necessary and proper for experienced politicians like President Mahama to stay away from any opprobrious pronouncements that can incite violence.

Strictly speaking, freedom of opinion and expression is not an absolute right in national and international jurisprudence. In fact, this right, like others, may be restricted to protect and balance other rights and interests. However, it is the complexion and the degree of these restrictions that is often contended in extant human rights and security jurisprudence.

It is, however, worth stressing that the inherent dignity and equality of every individual is the foundation of freedom, justice and peace in the world. Thus it is not surprising that international law prohibits statements which deny the equality of all human beings.

Take, for example, Article 20(2) of the ICCPR requires states to prohibit hate speech: “Any advocacy of national, tribe, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

Even though some experts contend that restrictions on hate speech can be justified, Article 20(2) has proven highly controversial and is variously criticised as being overly restrictive of free speech or as not going far enough in the categories of hatred it covers.

In so far as Article 20(2) does not obligate states to prohibit all negative statements towards national groups, tribes, races or religions, if a statement “constitutes incitement to discrimination, hostility or violence,” it must be condemned in no uncertain terms”.

Actually, the two known restrictions on the right to freedom of expression are: The prohibition of advocacy of any national, racial or religious hatred and the prohibition of propaganda.

Nevertheless, the prohibition of propaganda is not innately contradictory to the right to freedom of expression.

The right holder, however, has to be cognisant of the duty and obligations which are encapsulated in the international human rights instruments.

Interestingly, however, while propaganda for genocide is codified as an international crime, the propaganda for the incitement to aggressive war is not.

Nevertheless, incitement to commit an illegal act is in itself illegal under international law.

Furthermore, incitement, instigation, abetment and solicitation are all common to various criminal codes world-wide.

These are generally considered "inchoate offense[s]" or "a step toward[s] the commission of another crime, the step itself being serious enough to merit punishment”.

In the English common law for instance, there are three general inchoate offenses: 1) attempt; 2) conspiracy; and 3) incitement.

“ Incitement conveys a "general label to cover any use of words or other device by which a person is requested, urged, advised, and counselled, tempted, commanded, or otherwise enticed to commit a crime."

To President Mahama: even though, you have inalienable rights as a human being to seek, receive and convey information and ideas of all kinds , such rights are subject to permitted abridgement, so stop misusing such inherent rights.

K. Badu, UK.