Tribal identity and hate speech in Zambia:
Where does free speech end?
Prof. Cephas Lumina
FOR some individuals, tribal identity is important as it promotes a sense of belonging, strengthens social connections, and contributes to personal and communal well-being. Being part of a tribe offers support, alleviates feelings of isolation, and enhances one’s sense of self and purpose. On the other hand, tribalism focuses on the social and political implications of tribal loyalty and affiliation. While it can foster unity among members of a tribe, it may also lead to exclusionary attitudes towards those outside the tribe. Moreover, it can complicate relationships between different groups and create tensions within and between communities. As evidenced by the Rwanda genocide of 1994, identity politics can be manipulated to justify exclusionary and genocidal policies.
Growing up in Zambia during the first few decades after independence, tribal identity was not a major concern for many of us. I never paid attention to or asked about the tribal backgrounds of my friends, as it was not important to me. Even now, I do not know the tribal affiliations of some Zambian friends, and it does not bother me. What matters to me is our shared Zambian identity, influenced by our national motto: ‘One Zambia, One Nation.’
The motto was introduced during Zambia’s early post-independence period to promote national unity among the country’s diverse ethnic groups. President Kenneth Kaunda and the ruling United National Independence Party (UNIP) aimed to create a collective Zambian identity that transcending regional and ethnic differences. This motto played a crucial role in building a cohesive national consciousness for political stability and progress after colonial rule. It emphasized the importance of a unified national identity in a multi-ethnic state, focusing on a shared destiny and mutual responsibility. Government policies like regional and ethnic balancing quotas aimed to promote inclusivity and counteract ethnic biases. The concept extended to cultural aspects, emphasizing the significance of Zambia’s diverse indigenous languages alongside English as part of a broader national identity.
In the past decade, however, our national unity has significantly declined, leading to polarization and a weakening of our national motto. This erosion can be attributed to the rise of hate speech targeting individuals or groups based on tribal affiliation, political intolerance, low ethical standards, and irresponsible exercise of freedom of expression. Social media has played a significant role in spreading hateful and divisive narratives, exacerbating the issue.
Unfortunately, this situation has garnered international attention. In August last year, three independent experts of the UN Human Rights Council expressed concern about reports of arbitrary arrests and detentions of opposition leaders, parliamentarians, and activists on charges such as hate speech and seditious practices. Following her official visit to the country in January this year, Irene Khan, the UN Special Rapporteur on Freedom of Opinion and Expression, also raised concerns about political tensions and polarization in Zambia. She criticized the use of criminal offences like libel, insult, sedition, and hate speech, which are in violation of international law. Khan emphasized the manipulation of information by politicians and called for ethical standards to combat intolerance, discrimination, and misinformation. She also stressed the importance of freedom of expression for both democracy and development.
Where does free speech end and hate speech begin?
Free speech is a fundamental right protected by international human rights instruments and our Constitution. It permits the sharing of opinions without interference from the government, but it is not absolute and carries responsibilities. Therefore, freedom of expression can be restricted when it leads to harm, such as inciting violence or discrimination against particular groups, which is commonly referred to as ‘hate speech.’
Hate speech refers to offensive language targeting individuals or groups based on characteristics like race, religion, or gender, and threatening social harmony. While there is no universal definition of hate speech, the UN describes it as any form of communication, whether spoken, written, or behavioural, that attacks or uses pejorative or discriminatory language towards a person or group based on their religion, ethnicity, nationality, race, colour, descent, gender, or other identity factors. This definition highlights that hate speech can take various forms, such as images, cartoons, memes, objects, gestures, and symbols, and can be spread online and offline. Additionally, hate speech is ‘discriminatory’ (that is, biased, bigoted or intolerant) or ‘pejorative’ (that is, prejudiced, contemptuous or demeaning) towards individuals or groups and focuses on their identity factors. It is crucial to note that hate speech is directed at individuals or groups and does not cover expressions about state offices, public officials, or religious leaders or beliefs.
Hate speech becomes a criminal offence when it goes beyond expressing offensive opinions and incites violence or harm against targeted groups. This includes speech that encourages violence, hatred, or discrimination, posing a threat to public order, individual safety, or the dignity of targeted groups. In international law, hate speech becomes a criminal offence when it directly encourages genocide or actions that amount to persecution as a crime against humanity. The threshold for criminalizing hate speech is based on its potential to cause serious harm or violence towards protected groups, justifying legal consequences.
Criminal liability for hate speech varies across different countries. Some legal systems penalize hate speech that contributes to social discord or violence. In some jurisdictions, proving the perpetrator’s hateful intent is crucial for classifying the speech as criminal conduct. This means that hate speech is only criminalized when it goes beyond normal free speech boundaries and poses a significant risk of harm.
In Zambia, hate speech is prohibited under the Penal Code, which defines it as statements that stir up hatred, discrimination, or violence against individuals or specific groups. Section 70(1) of the Penal Code states that anyone who speaks or writes words that show hatred, ridicule, or contempt towards individuals or groups based on race, tribe, origin, or color can be imprisoned for up to two years.
The soon-to-be-repealed Cyber Crimes Act of 2021 also prohibits hate speech, defining it as any verbal or non-verbal communication, action, or material that shows hostility or segregation towards individuals or social groups based on various grounds. Offenders face fines of up to five thousand penalty units, imprisonment up to two years, or both. The Cyber Crimes Bill, 2024 does not define hate speech.
The need to avoid overzealous hate speech prosecutions
While hate speech can have severe negative impacts on social cohesion, it is important to avoid overzealous prosecutions to protect democratic values, promote open political discussions, and uphold the right to free expression. When hate speech laws are too broad or vague, they can be selectively enforced, potentially targeting legitimate dissent and criticism. This uneven application of the law can threaten democratic freedoms. Legal frameworks therefore need to strike a balance between curbing harmful speech and safeguarding free expression.
Additionally, ambiguous legal provisions and interpretations can lead to delays in legal processes and undermine suspects’ rights to a fair and timely trial. Uncertainties in the law can result in prolonged investigations and inconsistent application, impacting suspects’ access to speedy justice. These inefficiencies not only strain the judicial system but also create a chilling effect, where individuals may self-censor to avoid legal repercussions.
Interpreting hate speech laws can be challenging, especially in distinguishing between offensive speech and criminal incitement. Focusing on the form rather than the content of potentially offensive speech risks stifling reasoned arguments and limiting public discourse. Moreover, overzealous prosecution practices can worsen political polarization, as broad interpretations of hate speech laws in politically charged environments can breed distrust and animosity among citizens. This can be exploited to suppress dissent and deepen societal divides.
A balanced legislative approach is crucial. Clear boundaries in hate speech regulation are necessary to ensure that speech remains free enough to facilitate public discussion and participation. By establishing precise definitions and proportionate enforcement measures, policymakers can prevent the misuse of hate speech laws for political purposes while still addressing genuinely harmful expressions.
Time to reclaim our unified national identity
The increase in hate speech based on tribal affiliation in Zambia, along with arrests and prosecutions that may be politically motivated, is concerning for our national unity. It is important to recognize that hate speech can lead to mass atrocities like genocide, as seen in the Rwandan genocide where the dissemination of hateful rhetoric and dehumanizing messages about the Tutsi minority not only eroded social bonds but also encouraged ordinary citizens to participate in the violence. The legal response, which led to the conviction of media leaders, shows the dangerous link between hate speech and genocidal incitement, emphasizing the need to address hate speech to prevent such atrocities.
We must learn from the lessons of the Rwandan genocide and remember that we are ‘One Zambia, One Nation.’ This motto is not just a slogan but a continuous effort to promote a sense of unity and shared purpose among all Zambians, emphasizing that national advancement depends on a united population. It should be a guiding principle in our political discussions and policy decisions, ensuring that the diverse population of Zambia sees itself as part of a larger community rather than separate ethnic groups. As Khan pointed out, ‘[p]oliticians and public officials have a crucial responsibility in shaping public discourse and fostering a respectful, tolerant and safe society.’
