Freedom of Speech?

Remember ‘Je suis Charlie’?

At the very beginning of the year the world, or at least the Western world, was transfixed by the massacre at Charlie Hebdo. This attack by some rather disturbed individuals was, I think it’s fair to say, a reaction to the Islamophobic imagery and rhetoric produced by this magazine, imagery that was deliberately provocative and daring a response.

While the vast majority of those offended by these provocations chose to either ignore it or to combat it equally with the pen, these two disturbed individuals sought to combat it literally with a hail of bullets.

Almost immediately the Western world, Bermuda included, was swamped with ‘Je suis Charlie’ demonstrations, strongly defending that freedom of speech included the right to offend. Our politicians spoke eloquently along these lines too. The basic argument was that people are free to speak and free to oppose the speech of others, but such speech should not be censored or otherwise stifled.

Today, a mere nine months on, many of those who spoke so eloquently in defence of free speech in January, today seem happy to enforce censorship and champion the use of our stop list to ban an individual for voicing provocative and offensive views.

***For overseas readers, the ‘stop-list’ is a way of barring entry to Bermuda of those the Government decides to be undesirables. Should they get to the airport or dock, they’re refused entry and put back on the next vessel leaving the island.***

Free Speech or Hate Speech?

There is of course a large body of discourse around the issue of freedom of speech and hate speech:

  • What is the fine line between the two?
  • How should the latter be handled without impinging on free speech?

To be clear, I personally find Mr Kimathi’s views abhorrent, and I do indeed think they stray into the category of hate speech – as regards Whites and those who stray from a fictional heterosexual dichotomy of sexual orientation, gender or gender codes. And I do believe Mr Kimanthi, has advocated (although it’s not clear how explicitly he did in Bermuda) violence towards these segments of our society.

Now, incitement to violence is a crime, and if Mr Kimathi did this, then he should indeed be charged and face trial accordingly. Espousing ridiculous opinions without any basis in science, that may be a crime against oneself, general decency and logic, however it is not a crime in the sense of being subject to arrest and trial.

Making a Martyr?

The problem with banning Mr Kimathi like this – without a police investigation and trial, and even before the Human Rights Commission has been able to investigate the matter properly – is that it risks making him, and his ideology, almost a martyr, in the sense of not being accorded due process or proper scrutiny. It actually benefits Mr Kimathi as he can now appeal to his followers about an injustice, and use it to fuel his ravings. It’s easy to spin – the reason I was banned was because I spoke the truth and threatened the White elite who rule Bermuda! Easily done.

A far better approach would be to allow Mr Kimathi’s ideology to be fully scrutinised by the people, to be refuted ideologically, to be confronted with peaceful demonstration to say that his ideology, what he represents, is not supported by the majority of our people. Those who are partial to his ideology could exchange arguments and, potentially, be convinced otherwise. That’s how to defeat Mr Kimanthi’s ideology and appeal.

Instead, now he can wear his ban as a badge of honour, as the mark of a martyr.

And those on island who support his hateful ideology may well go underground, where the ideology cannot be challenged, where it can only harden and find itself – potentially – in violent expression. This form of authoritatian reaction is a perfect incubator for extremism; it is a recipe for it finding fertile ground in those in our society who feel lost, alienated and resentful.

Setback for Race Relations?

One particular victim of Mr Kimathi and Minister Fahy’s reaction is that it has very much set back what was left of reasonable discussion concerning structural racism in Bermuda.

The topic that Mr Kimathi’s speech was advertised about, of the need for better education and understanding of African history and contribution to our society, is one that we need. The Ashay programme, now aborted, was an attempt to provide just this, as a complement to the dominant European narrative in our society.

However due to Mr Kimathi’s hateful ideology, one that I think can only be characterised as a particularly perverse form of Black supremacism (as opposed to Black Power), all talk of such an initiative is derailed. Heck, any talk of really confronting structural racism in Bermuda as a whole is likely derailed, at least set back. It will be all too easy for those opposed (for whatever reason) to such a frank discussion to frame it in terms of Mr Kimathi’s arguments, and use this as an excuse not to engage.

Incitement to Violence

To me, the only limit that should be placed on free speech is that of incitement to violence.

Anything else, as abhorrent as they may be, deserves simply to be derided and challenged with alternative argument, or met by peaceful demonstration (or both). Or even simply ignored and let to peter out as an absurdity clear to all.

The use of a stop list is a slippery slope and one that I think we all need to be concerned about.

I am not convinced – at all – that it was an appropriate reaction. At the very least, the decision should only have followed the Human Rights Commission report on Mr Kimathi’s actions on island.

A stop list is open to abuse, to stifling debate and reducing the diversity of thought that should be the oxygen of any democracy.

My thinking is that an ideologue should only be subject to a stop list if – and only if – they have been convicted of inciting violence. After being convicted of this, and paying either the fine or serving time in prison, or some sort of restorative justice, they can be denied further entry on this basis. And that basis alone, regardless of how disgusting I find the individuals ideology.

Return to Reasoned Conversation Needed

What we do need, and desperately, is a return to a frank conversation about structural racism in Bermuda – its causes, its consequences, possible steps to end it (of which a frank conversation is but an important first step). A better appreciation of the role of African history and culture in our collective history has a key role to play here too.

Quite frankly, we either do this properly or we leave a vacuum to be filled by pseudo-scientific and hate-filled ravings like those peddled by Mr Kimanthi.

***For avoidance of doubt, I don’t think this action was taken lightly by the Government, and I don’t think there was any conspiracy about it, although I can understand why some on social media are articulating it as such. I think the Government has acted in good faith here, trying to do the right thing. The issue of free speech and hate speech is a very complex and difficult one, one that is emotive and I don’t think there’s any one right answer. I just think that the litmus test should be incitement to violence, where the alleged incitee is provided with due process. That’s my belief, and I think it’s a reasonable one, although I certainly understand the passions that Mr Kimathi’s speech (and history) have riled. To me, a strong democracy must take great care on matters of freedom of speech, and dealing with our structural race problems are key to the long-term sustainability of our society and democracy.***

13 thoughts on “Freedom of Speech?

  1. First of all, it interested me, that the RG allowed, then removed, then didn’t allow comments etc.

    Surely they would have realised that the issue would be contentious at best? Are they a barometer of what constitutes that “fine line?” One could almost believe that there were double standards at play.

    I suspect we react as we do, partly because it is the easy way out of a problem. I think back to Dr Brown and the chef that was sent packing. Would a brief investigation have resulted in a different outcome than being removed from the island?

    Would Mr Kimathi have been put on the stop list had Dr Brown/Paula Cox still been Premier?

    It is a fine line as you say between free speech and a speech of hate. Many took issue with Walter Roban’s remarks many moons ago. Unlike Mr Kimathi, Walter Roban is here to stay. Can’t put him on a stop list.

    Should the Govt have responded to Mr Roban? Would the Govt have responded to his remarks had it been an OBA Govt?

    How would we respond to Mr Kimathi’s remarks had they come from a Bermudian living here? That I think would be a true test of what we are prepared to put up with in this society.

  2. In theory, I think it’s possible to remove Bermudian status from someone. So, maybe that would be the route taken?

  3. Yes. Although in our case we can only remove Bermudian status. I believe one then becomes British only by default. The British can, I think, however remove British citizenship (and have done so I believe for people joining Daesh).

  4. Good morning – I don’t think you fully read the article. I make it clear that I think (from the various articles) that he did indeed incite violence. However, this was not conclusively determined, with neither a police investigation or a Human Rights Commission investigation concluded prior to his being added to the stop list. My argument is that he should have been found guilty of such, through due process, before being added to the stop list.

    Have a great day.

  5. Jonathan, with respect you have your due process point about the stop list the wrong way round.

    The purpose is to keep undesirables out of Bermuda. A criminal conviction is just one example of undesirable conduct. Openly advocating violence is another, whether you have been convicted of it or not.

    A trial would only be possible of the offence occurred in Bermuda. Often the conduct which makes somebody undesirable occurred outside of Bermuda. Even if the conduct did occur in Bermuda, a trial gives a person a very public platform for their views and also entitles them to come here, as criminal defendants have a right to appear at their trial, which defeats the purpose of excluding them.

    Further putting somebody on trial for a hate speech crime and imposing criminal sanctions is an even greater interference with freedom of expression than just excluding somebody. If I were visiting a foreign country and got into trouble for agitating the populace, I’d much prefer to be expelled than thrown in jail and put on trial and then expelled after serving my sentence.

    The due process for somebody who has no ties to Bermuda to go on the stop list is quite simple: the governor satisfies himself that he have identified the right person and that the case has been made out.

    If the person wishes to challenge the decision, there are ways of doing so via the legal system. In a freedom of expression case, they could also claim damages if the court finds there was unjustified interference. So there is due process there.

  6. You can only lose Bermudian status if you obtained it by deception or if you lose your Commonwealth citizenship.

    Assuming your Commonwealth citizenship is British or BOT you can only lose it if you obtained it by deception or if it would be conducive to the public good to do so

  7. And this goes to the heart of the matter I think. What constitutes an ‘undesirable’? What are the criteria? Are they objective? In the past the use of the stop list would have branded Nelson Mandela or Martin Luther King Jnr an ‘undesirable’. Thus my point that it’s use can lead to a very slippery slope.

    As we are referring to an incident that occurred in Bermuda (Mr Kimathi’s speech at Liberty), if he committed a crime (incitement to violence), then yes, that’s what I’m referring to – him being charged and put on trial here in Bermuda. Yes, it does give the person a ‘public platform for their views’ and so forth. That’s the nature of democracy. It is not simply his incitement to violence which is then publicly tried, but his views themselves. And that is the way to defeat them, not by forcing them underground.

    I am not advocating at all that one be formally put on trial for hate speech – I’m advocating people be put on trial only if they incite violence.

    Due process in this occasion would have been to (a) wait until the HRC had completed its investigation and submitted its recommendations; (b) wait until a police investigation was completed concerning whether a crime was committed (incitement to violence). At a minimum. I’d go further and say due process would have included a trial and a conviction. Only then – if Mr Kimathi had been convicted of inciting violence – would putting him on the stop list had been warranted.

    I find the ability of the Minister to simply add someone to a stop-list without some objective criteria (of which I suggest, in such a case, a conviction of inciting violence) worrying and potentially dangerous. It sets a precedent that could be set. What’s to stop it being used against a speaker concerning trade union rights, or climate change, for example? While it may seem far-fetched that such a speaker could be put on a stop-list, the thing about slippery slopes (especially in a country with a history of barring Black Power advocates, socialists and unionists) is that one can potentially slide down them VERY quickly before one realises it. Thus the importance of defending free speech, even for someone as unsavoury as Mr Kimathi.

  8. Having reviewed the Immigration & Protection Act 1956 (specifically section 22 ‘loss of Bermudian status’) you are correct (you refer I believe to section 22(3)). I believe some now deleted parts of section 22(1) did allow for other removals of status, but I don’t know. So I retract my previous statement regarding that.

    I don’t see anything that speaks to the ‘conducive to the public good to do so’ bit you mention, which could be open to abuse if it was there, no?

  9. Just to emphasise – it is the Governor, not the Minister who is in charge of the stop list.

    Objective criteria are not necessarily helpful for these types of issues. We should be more concerned with general principles that are subject to judicial oversight to deal with changing social circumstances. Otherwise somebody will say “ah, I didn’t meet the test at sub-paragraph 4, point iv, so you can’t exclude me”. The Constitution sets out when somebody’s freedom of expression can be interfered with, and these have been developed via caselaw.

    There is clear due process. If somebody objects to being put on the stop list, they can bring a legal challenge relying on their right to freedom of expression. The court will scrutinise whether the interference was unconstitutional. If the court thinks it was unconstitutional, it could order the Governor to remove the person from the stop list, and give them damages for the breach of their constitutional rights.

    A local person could even bring a constitutional claim arguing that putting a person on the stop list has interfered with their constitutional right to hear the excluded person’s educational and informative lectures.

    Bermuda is no longer a colonial era plantation, where the Governor’s word is final. There are extensive constitutional rights that protect due process and freedom of expression via judicial scrutiny.

  10. You can lose your British or BOT citizenship if it would be conducive to the public good. Assuming you do not have another form of commonwealth citizenship, this would cause your Bermudian status to fall away automatically (see s.22(1)(a) of the Immigration Act).

    This can only be done for extreme cases, such as terrorism, espionage, serious organised crime, war crimes, etc.

    It can’t be done if it would leave a person stateless. So it would only cause a person to lose Bermudian status if they had another non-commonwealth citizenship, enabling them to be deprived of British / BOT citizenship – e.g. US / Portuguese.

    There is a full right of appeal against a deprivation order to prevent abuse.

    Essentially though losing Bermudian status would be a consequence of losing British citizenship rather than a decision locally to remove somebody’s Bermudian status.

  11. Pingback: Freedom of Speech – An Update | "catch a fire"

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