Apostasy, Blasphemy, And Hate Speech Laws In Africa

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RWANDA COMMEMORATES 25 YEARS SINCE GENOCIDEKIGALI, RWANDA - APRIL 07: People hold candles during a commemoration ceremony of the 1994genocide on April 07, 2019, at Amahoro Stadium in Kigali, Rwanda. The country is commemorating the25th anniversary of the genocide in which 800,000 Tutsis and moderate Hutus were killed over a 100-day period.(Photo by Andrew Renneisen/Getty Images)USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA

UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOMAPOSTASY, BLASPHEMY, andHATE SPEECH LAWS in AFRICAImplications for Freedom of Religion or Belief By Ferdaouis Bagga, Policy Analystand Kirsten Lavery, International Legal SpecialistDecember 2019www.uscirf.govUSCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA

CommissionersTony PerkinsChairGary BauerGayle ManchinVice ChairTenzin DorjeeNadine MaenzaVice ChairJohnnie MooreAnurima BhargavaAndy KhawajaExecutive StaffErin D. SingshinsukExecutive DirectorProfessional StaffHarrison AkinsPolicy AnalystPatrick GreenwaltResearcherDominic NardiPolicy AnalystFerdaouis BaggaPolicy AnalystRoy HaskinsDirector of Finance and OfficeManagementJamie StaleySenior Congressional RelationsSpecialistDwight BashirDirector of Outreach and PolicyThomas KraemerDirector of Operations andHuman ResourcesZachary UdinProject SpecialistElizabeth K. CassidyDirector of Research and PolicyKirsten LaveryInternational Legal SpecialistKeely BakkenPolicy AnalystJason MortonPolicy AnalystUSCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICAScott WeinerPolicy AnalystKurt WerthmullerSupervisory Policy Analyst

TABLE OF CONTENTSExecutive Summary 1Introduction 3Prevalence of Legislation in Africa 5International and Regional Human Rights Principles 6Definitions 7Permissible and Impermissible Restrictions on Speech: 7Central African Republic 10Country Examples: Apostasy Laws 11Algeria 11Morocco 11Sudan 12Egypt 13Country Examples: Blasphemy Laws 14Mauritania 16South Sudan 17Lesotho 18Sudan 18Country Examples: Intersection of Blasphemy and Hate Speech Laws 19The Gambia 19Eritrea 20Country Examples: Hate Speech Laws 21South Sudan 22Rwanda 23Uganda 24Kenya 25South Africa 26Sierra Leone 27Democratic Republic of the Congo 28Conclusion 29Africa 29Recommendations for U.S. Policy 30Appendix 1: Apostasy Laws Analyzed 31Appendix 2: Select Blasphemy Laws 32Appendix 3: Hate Speech Laws Analyzed 42Endnotes 49USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA


EXECUTIVE SUMMARYEXECUTIVE SUMMARYThe freedoms of opinion and expression and of religion or belief are intricately intertwined—where violationsoccur against one, there are often violations against the other. Although these human rights are protectedunder articles 18 and 19 of the Universal Declaration of Human Rights (UDHR), states around the worldcontinue to pass and enforce laws that restrict both freedoms. This paper provides a survey and analysis ofspeech restrictions in Africa that have, or may, limit FoRB. Laws that restrict apostasy (the public renunciationof one’s religion), blasphemy (the insult of a religion or religious objects or places), and hate speech (generallyencompassing communication that prejudices a particular group based on race, religion, ethnicity, or otherfactor) all limit freedom of expression. Such laws also have unique implications for citizens’ abilities to expressand practice their faith. These laws are prevalent throughout Africa, where at least 9 countries have apostasylaws, at least 25 criminalize blasphemy, and at least 29 have laws against hate speech.In exploring the prevalence and nature of these laws, this report shines light on the following trends: Blasphemy and apostasy laws are often overbroad Laws restricting the media and free press areand can be used to limit a variety of religiousoften used to prohibit hate speech on the basis ofexpression. These laws violate internationalrace, ethnicity, religion, and other factors, withhuman rights law and should be repealed.the written intent to protect those individual–– The application of laws in Algeria and Sudanidentities; however, these laws are also oftenprohibiting proselytizing and converting,open to misuse for political purposes.respectively, are examples of states actively–– The Democratic Republic of Congo, Lesotho,attempting to control the religious identity andKenya, South Sudan, and Sierra Leone areexpression of the population.examples where such overreach occurs and Hate speech laws are also generally overbroadand can be used to limit a variety of religiousexpression. These laws should be re-drafted towhere freedoms of expression and religionare at risk. Hate speech laws often lack independentcomply with international standards.oversight mechanisms and have inappropriate–– Under international law, speech may only bepunishments.restricted in certain limited circumstances, Hate speech laws often are not integrated intosuch as when it meets the threshold forlarger plans aimed at effectively reducingimminent incitement. Speech may notintolerance and hatred in society. Wherebe restricted when it criticizes or insultsspeech is protected and therefore not able tobeliefs, religions, or religious groups. Statesbe limited through legislation, states can usemust safeguard against hate speech lawsother strategies and tools to address problems offunctioning as blasphemy laws. The Gambiahate speech and discrimination against certainand Eritrea are examples of countries withgroups. Meaningful and inclusive partnershiplaws that fit both types of speech restrictions.with civil society is key for governments toachieve these goals.USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA1

EXECUTIVE SUMMARYThe United States can support African partners in protecting the freedoms of expression and religionby: 1) pushing for the repeal of blasphemy and apostasy laws; 2) pushing partners to assess and reform hatespeech laws to ensure they comply with international standards; 3) providing funding for holistic programs toengage civil society in countering hate speech and violence based on identity; 4) documenting the impacts ofhate speech laws on FoRB in the U.S. Department of State’s annual international religious freedom reports; 5)ensuring that regulations on social media and communications platforms account for the potential impactson FoRB and religious minorities around the world; and 6) partnering with African states to conduct additionalworkshops with officials centered on responsive government practice and inclusive approaches to minoritycommunity needs.2USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA

INTRODUCTIONINTRODUCTIONUnder international human rights law, the freedombecame more common following the Holocaustof opinion and expression is an important safeguardand the 1994 genocide in Rwanda, two events thatthat protects other fundamental rights—includingtragically demonstrated the power of speech tothe freedom of religion or belief (FoRB). The freedomscatalyze mass atrocities. A trend in using media lawsof religion or belief and opinion or expression goto prohibit hate speech in social and other digitalhand in hand, and comprise articles 18 and 19 of themedia is also increasing. Overbroad hate speech lawsUniversal Declaration of Human Rights. Both supportthat aim to combat expression considered offensive toan individual’s right to hold and express opinionsreligious groups are often tantamount to blasphemyand beliefs of their choosing. Laws protecting oneand apostasy laws, resulting in the same restrictionsfreedom naturally support the protection of the other.on fundamental rights.In the same vein, laws restricting the freedomRecently, some states in the internationalof opinion and expression can also impede FoRB.community have repealed obsolete and harmfulApostasy, blasphemy, and hate speech legislationblasphemy laws; however, apostasy and blasphemyby definition all limit the freedom of expressionlaws continue to exist in many countries, and newand opinion, and also impact FoRB, whether byspeech restrictions are enacted each year to varyingprohibiting speech deemed sacrilegious, publiceffect. In particular, all three types of speechdenouncements of religion, or hateful statementsrestrictions that also hinder FoRB remain prevalentagainst certain identity groups. Although apostasyin Africa.and blasphemy laws have been used for centuriesThis paper explores how and why some of theseto protect state religions and punish unrecognizedlaws restrict speech, and identifies their potential, orones, laws prohibiting and criminalizing hate speechactual, impact on FoRB.USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA3


PREVALENCE OF LEGISLATION IN AFRICAPREVALENCE OF LEGISLATION IN AFRICAAccording to Pew Research Center, one in ten countries in the world—in the Middle East and North Africa, AsiaPacific, and sub-Saharan Africa—have laws or policies criminalizing apostasy. According to research by Pewand the Library of Congress, in Africa, at least nine countries have such laws: Algeria Mauritania Somalia Egypt Morocco Sudan Libya Nigeria Western SaharaAccording to research by USCIRF with support from the Law Library of Congress, at least 26 countries inAfrica have laws against blasphemy: Algeria Libya South Africa* Botswana Malawi South Sudan Cameroon Mauritania Sudan Cape Verde Mauritius Tanzania Comoros Morocco The Gambia Egypt Nigeria Tunisia Eritrea Rwanda Zambia Ethiopia Seychelles Zimbabwe Kenya Somalia*Blasphemy is a common law criminal offense in South Africa.While some states explicitly and specifically criminalize hate speech, even more criminalize forms of hatespeech implicitly or as part of broader regulations. Pursuant to research conducted by USCIRF for this report,hate speech is criminalized in at least 29 states in Africa: Angola Eritrea Republic of the Congo Benin Gabon Rwanda Burundi Kenya Senegal Botswana Lesotho Sierra Leone Cameroon Liberia South Sudan Chad Malawi Tanzania Cote d’Ivoire Mauritius Togo Democratic Republicof the Congo Morocco The Gambia Mozambique Uganda Djibouti Namibia ZimbabweSouth Africa, Ethiopia, Nigeria, and Zambia also have pending or proposed legislation to criminalize hate speech.The appendixes of this report contain excerpts from select apostasy, blasphemy, and hate speech laws reviewed forthis report.USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA5

INTERNATIONAL AND REGIONAL HUMAN RIGHTS PRINCIPLESBlasphemy, apostasy, and hate speech laws must beThe freedom of opinion and expressionconsidered within the context of international andsafeguards other rights, including the freedomregional human rights laws. International humanof religion or belief. A core aspect of the freedomrights law protects the fundamental rights of FoRBof religion or belief is the right to peacefuland the freedom of opinion or expression. Article 18manifestations, which relies on the freedom ofof both the Universal Declaration of Human Rightsexpression or opinion. Although some states view(UDHR) and the International Covenant on Civilthese two rights as in conflict, these two fundamentaland Political Rights (ICCPR) safeguard freedom ofrights are in fact mutually reinforcing. One rightthought, conscience, and religion. This right extendscannot be fully enjoyed in the absence of the other.to the freedom to changing religion or belief andRegional human rights instruments in Africamanifesting religion or belief in teaching, practice,also protect these rights. Article 8 of the Africanworship, and observance.Charter on Human and Peoples’ Rights, whichThe UDHR and the ICCPR also protect thecame into effect in 1986, guarantees “freedom offreedom of opinion or expression, including the rightconscience, the profession and free practice ofto discuss and even criticize religion. Internationalreligion.” The Charter prohibits all governments fromhuman rights law protects individuals, and does notrestricting these rights, except when it is necessaryprotect religious beliefs and interpretations. Thisto maintain law and order. Article 9 of the Africanmeans that there is no right for believers to have theirCharter on Human and Peoples’ Rights provides thatreligion or belief protected from adverse comments.“[e]very individual shall have the right to expressStates may not restrict an individual’s right to hold theand disseminate his opinion within the law.” Thebeliefs of his or her choice. Restrictions on expressionAfrican Commission on Human and People’s Rightsor manifestations of religion or belief are onlyruled in Communication 102/93 against Nigeriapermissible when absolutely necessary to protect thethat states can only impose necessary restrictionspublic safety, order, health or morals, or fundamentalto rights protected by international human rightsrights and freedoms of others.instruments, noting that no situation justifies the1wholesale violation of rights.6USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA

DEFINITIONSDEFINITIONSBlasphemy, apostasy, and hate speech laws are unique limitations on speech motivated by a range of intentionsand include a range of penalties, as defined in the chart that follows. However, implementation as well as actualand potential impact matter. Ultimately, the stated or publicly promoted intentions of the laws may or maynot be in line with the actual goals of the drafters of the laws, or the laws may end up being implemented incompletely unintended ways.Apostasy LawsBlasphemy LawsHate Speech LawsDefinitionCriminalize the act of renouncingone’s religionCriminalize the act of insultingor showing contempt or lackof reverence for God or sacredthingsCriminalize or prohibitexpression that prejudices aparticular group based on theirrace, religion, ethnicity, disability,sexual orientation, or other factorIntending toProtectThe retained membership of aspecified religious groupReligious practices and worship;integrity/image of a religionIndividuals belonging to orsubscribing to the belief of agroup, identity, or classification,often used to protect minorityidentity groupsIntending toPunishIndividuals denouncing a religionand/or individuals recruiting forconversionIndividuals speaking, writing,and/or acting in a way deemedoffensive to a religion, sacredpractice, or religious figureIndividuals advocating hatred,discrimination, hostility, orviolence against a specific groupLegal PenaltyExamplesLoss/denial of child custody, lossof citizenship, imprisonment,execution*Imprisonment, propertyconfiscation, fines, and executionImprisonment and fines* Sentencing is often dependenton behavior following arrest orconviction (i.e., repentance).Table 1 - Summary of Apostasy, Blasphemy, and Hate Speech Laws’ Definitions and Penalties.Hate speech is an umbrella term that is notdefined clearly and consistently. The UN Strategy andPlan of Action on Hate Speech provides that the termPermissible and ImpermissibleRestrictions on Speech: Blasphemy and apostasy: Blasphemy andis typically understood to be any communicationapostasy laws are both impermissible underthat prejudices a particular group based on theirinternational human rights laws. Blasphemyrace, religion, ethnicity, disability, sexual orientation,laws violate international and regional humanor another factor. Many forms of discriminatory,rights law, including the freedoms of religionderogatory, and demeaning discourse fall within thisor belief and expression. Religious freedomwide umbrella of hate speech, including imminentincludes the right to express a full range ofincitement and incitement to genocide, which thethoughts and beliefs, including those that othersfollowing paragraphs describe in further detail.might find blasphemous. Further, internationalstandards specifically protect individuals,and cannot be expanded to protect religiousinstitutions or ideas from criticism.USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA7

DEFINITIONSApostasy laws are also inconsistent withinternational and regional human rightsstandards as they fail to respect recognizedHate SpeechLimited prohibitions allowed pursuantto Article 19(3) of the ICCPRfundamental rights, including the right tochange one’s religion and the right to discuss,and even criticize, religion. The intersection between hate speech andblasphemy laws: As explained by the UN d to criminilizepursuant toArticle 20(2) of ICCPRRequired to criminilizepursuant toArticle III of the CPPCGRapporteur on the Freedom of Religion orBelief, as blasphemy laws have fallen out of favorin some parts of the world, more states haveenacted hate speech laws, asserting that they areFigure 1- Overlap in Hate Speech Categories andRelevant Standards for Prohibition–– Incitement to Genocide: Article III offollowing requirements under international law.the Convention on the Prevention andHowever, hate speech laws that are formulated inPunishment of the Crime of Genocidevague terms or focus on banning specific content(CPPCG) requires states to criminalize directcan effectively be applied to prohibit blasphemy.and public incitement to genocide. GenocideThe effects of hate speech laws can be similar tois defined as specific acts committed with theblasphemy prohibitions, particularly when hatespecific intent to destroy, in whole or in part,speech laws limit speech based on disagreementa national, ethnic, racial, or religious group.with or dislike of the subject matter, rather thanIncitement to genocide requires calling on thewhen the laws apply a contextual analysis toaudience to commit genocide. Absent suchdetermine whether violence, discrimination,a call or when the speaker makes a vague oror hatred are imminent. These distinctionsindirect suggestion, hateful language that doesare essential to ensuring compliance withnot rise to the level of incitement to genocideinternational human rights laws.may still qualify as imminent incitement that Hate speech: While there is no internationaldefinition of the widely used term “hate speech,”there is a consensus among international legalcan be prohibited as described in the followingparagraphs.–– Imminent Incitement: States are requiredauthorities and instruments that certain typesunder Article 20(2) of the ICCPR to create lawsof speech most likely to spark violence, harm,to prohibit “any advocacy of national, racial orand/or discrimination may be regulated. Inreligious hatred that constitutes incitement tobalancing freedom of expression and protectiondiscrimination, hostility or violence” (whichfrom incitement, rules prohibiting such harmfulwe refer to as “imminent incitement”).speech must be narrowly defined to avoidAs any limitations on speech are the exception,circumventing the freedom of expression andstates must ensure a high threshold isopinion.used for imminent incitement. As noted in2006 by the UN Special Rapporteur on thefreedom of religion or belief, Article 20(2)8USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA

DEFINITIONSprotects individuals, and not belief systems.Released by the UN Office of the HighArticle 20(2) sets a high threshold to ensureCommissioner on Human Rights, the Rabatexpression is only limited if it amounts toPlan of Action provides legal and practical“incitement to imminent acts of violence orguidance on how legislation should complydiscrimination against a specific individualwith Article 20. This document recommendsor group.” As the Special Rapporteur hasthat hate speech legislation include clearfurther noted, “any attempt to lower thereference to the standard in Article 20(2) andthreshold of article 20 . . . would not onlydefine key terms including (1) hatred, (2)shrink the frontiers of free expression, butdiscrimination, (3) violence, and (4) hostility.also limit freedom of religion or belief itself.While Article 20(2) requires states to prohibitSuch an attempt could be counterproductiveimminent incitement, there is no requirementand may promote an atmosphere of religiousto criminalize this speech. The Rabat Planintolerance.” UN Human Rights Councilof Action recommends that legislationResolution 16/18 further reiterates theinclude a clear distinction between criminalnecessity of a high threshold of limitingexpressions, expression that may justify aspeech pursuant to Article 20(2) as “the opencivil suit or administrative sanctions, andpublic debate of ideas can be among the bestexpressions that merely raise concerns ofprotections against religious intolerance.”intolerance. In addition, the Rabat Plan ofTo ensure speech reaches this high threshold,action notes that “Criminal sanctions relateda contextual assessment that considers a rangeto unlawful forms of expression should be seenof factors and the relevant cultural sensitivitiesas last resort measures to be applied only inis often used to determine whether imminentstrictly justifiable situations.”2incitement is present. Although the actionUN Security Council resolutions regularlyadvocated does not need to be committed forcondemn incitement to violence and thespeech to be a crime, courts frequently use aspread of hate speech, and often call forsix-part threshold test to determine the overallreporting on acts of incitement to violence. Incontext and severity of a specific expressionrare cases, the UN has authorized and calledand its likelihood to lead to the actionfor sanctions against those responsible for actsadvocated, including a context conduciveof incitement based on ethnic and religiousto violence, an influential speaker, a speechidentity, such as in the cases of Cote d’Ivoire oract that is widely disseminated, a receptiveCentral African Republic (CAR).audience, and a target of a protected group.USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICA9

DEFINITIONSCENTRAL AFRICAN REPUBLICInternational Enforcement of StandardsIn January 2018 the United Nations added a new option for sanctions targeting actors fuelingconflict in the Central African Republic through UN Security Council Resolution 2399(2018).Paragraph 22 of the resolution “[c]ondemns all acts of incitement to violence, in particular on anethnic or religious basis” and “decides that individuals and entities who commit such acts” maybe subject to sanctions including freezing of funds, financial assets, and economic resources,or travel bans. The resolution was responding to a rise in religious-based violence, hatred, andinciting speech, in particular against Muslim, Arab, and Fulani populations as well as against UNpeacekeepers. Under the new sanction, individuals found guilty of incitement can be restrictedfrom travel or to have their assets frozen. The resolution also called upon the Panel of Experts tocollect and report on “acts of incitement to violence, in particular on an ethnic or religious basis, thatundermine the peace, stability, or security of the CAR and identify those perpetrators.”–– Other limitations on hate speech: The termincitement or incitement to genocide musthate speech is vague and lacks a commonmeet the strict requirements of Article 19(3)definition, which leads to overbroad lawsof the ICCPR. Article 19(3) requires that anythat jeopardize freedom of speech andspeech limitation be legal, proportional, andexpression. While states are required tonecessary. Consequently, this means that thenarrowly prohibit imminent incitement andlegislation can only impose restrictions by lawincitement to genocide, many states limit hateand as are necessary to protect the rights orspeech more broadly. Any legal prohibitionreputations of others, national security, publicon hate speech that goes beyond imminentorder, public health, or public morals.Is the Speech Being Addressed.Incitement to Genocide?(Article III of CPPCG)YesNoImminent Incitement?(Article 20(2) of ICCPR)YesThis speech can benarrowly prohibited.NoAble to Reach the Threshold of Legality,Proportionality, and Necessityin Article 19(3) of ICCPR?NoThis speech cannot be prohibited.Figure 2 - Permissible Limitations on Speech in International Human Rights Law10USCIRF APOSTASY, BLASPHEMY, AND HATE SPEECH LAWS IN AFRICAYes

COUNTRY EXAMPLES: APOSTASY LAWSCOUNTRY EXAMPLES: APOSTASY LAWSLaws prohibiting apostasy (“apostasy laws”)Apostasy laws are often broad and prohibit additionalcriminalize the act of abandoning one’s religion.activities beyond renouncing or changing one’sApostasy laws are meant to protect the membershipreligion, such as persuading or attempting toof a r

laws, at least 25 criminalize blasphemy, and at least 29 have laws against hate speech In exploring the prevalence and nature of these laws, this report shines light on the following trends: Blasphemy and apostasy laws are often overbroad and can be used to limit a variety of religious expression These laws violate international

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