January 10, 2000
The Act passed unanimously in the National Assembly last week amending the Representation of the People Act provides that anyone who makes or publishes or causes to be made or published any statement or takes any action which results or can result in racial or ethnic violence or hatred among the people shall be liable on summary conviction to a fine of $l00,000 and imprisonment for two years. Moreover, anyone convicted shall also be incapable for five years thereafter of being a member of the National Assembly or any local democratic organ. It is a tough law which flows from the recommendations of the Constitution Reform Commission and follows the Ethnic Relations Commission Act, also a recommendation of the Commission, that was passed unanimously in August. The amendment goes on to provide that when a person is convicted of an offence the Registrar of the Supreme Court shall send details of the conviction and the notes of evidence to the chairperson of the Ethnic Relations Commission. Where in the opinion of the magistrate or the chairperson the notes of evidence disclose the involvement of a political party the leader of that party shall be summoned to attend meetings of the Commission and if after hearing the leader the Commission is satisfied that the statement was made or the action was taken on behalf of the party and the party has not publicly dissociated itself from the statement or action the chairperson shall send those findings to the chairperson of the Elections Commission. Thereupon, the Elections Commission shall not accept any list of candidates from that party for five years thereafter. There is provision for an appeal to the full court.
The amendment also provides that a written complaint can be made to the Ethnic Relations Commission that a party has itself (through its agents) made a statement or taken an action that causes or can cause ethnic violence or hatred. Similar penalties can follow. The Act does, of course, constitute an infringement of the right of free expression and might even at first glance appear to be unconstitutional. However, the new constitution provides that freedom of expression "does not relate to hate speeches and other expressions in whatever form, capable of exciting hostility or ill-will against any person or class of persons". The key question then for the courts to decide will be whether a particular statement does in fact or can promote racial hatred or violence. Clearly a proposal for a federal system in Guyana would not fall in that category, though it might offend some people who might see it as divisive. A proposal for executive power sharing because of ethnic voting patterns would also clearly not qualify. That is a normal part of legitimate political debate. What about speech that makes no effort to deal constructively with current issues but promotes ethnic insecurity by false allegations of discrimination or panders to ethnic prejudices? That is surely much closer to the mischief that the Act seeks to deal with but whether it is covered will remain a matter for the courts. If the net is cast that widely many TV talk show hosts will be in immediate jeopardy. They routinely entertain false and ethnically biased charges on their programmes from callers which they are either incapable of correcting as they don't know the facts or choose not to correct and which most certainly pander to ethnic prejudices and inculcate hatred.
It must be said that the drafting both of the amendment act and the exception to the constitution leaves a great deal to be desired. Consider by contrast the South African Constitution which confers freedom of the press and other media but says this right does not extend to "advocacy of hatred that is based on race, ethnicity, gender or religion and that which constitutes incitement to cause harm". More precise and more limited.
What the new Act most certainly does cover is speech that explicitly promotes or encourages ethnic hatred or violence. Even liberals who believe firmly in the essential value of free speech in a democracy may be prepared to accept this limitation in the circumstances of our society. There are some in the media and in politics who still seem unaware of the dreadful fate to which the promotion of ethnic hatred can lead. They should read the story of Rwanda and the merciless tribal genocide that took place there. And indeed we had our own small taste of where this can lead in the sixties. In Parliament, the politicians made high minded speeches in the debate on this law. One must hope these were not mere rhetorical gestures. For at the end of the day it is with them that the matter lies. If they conduct their political campaigns divisively and in a manner that can lead to hatred and violence they will cause great damage to the society. Have they accepted that under the new law they can be charged and convicted and themselves or their parties disbarred if they make inflammatory speeches (though the appeal procedure may create an escape route of some kind given the time element - can a party be disbanded after winning the elections for a statement made before if an appeal is lost?).
The new Act is potentially a bold step forward. Though one must have some reservations about it from a free speech standpoint especially given the somewhat loose drafting, overall it attempts to confront a major social and political problem, ethnic insecurity. In itself it is not enough, but it is a start. It remains to be seen how it will be implemented and enforced.
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