The elements of a charge must be established

May 19, 2022 Features / Columnists, Peeping Tom

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Kaieteur News – The Racial Hostility Act creates an offence for willfully exciting racial hostility or ill-will either against a segment of the population or against a member of the public. But in order for this specific offence to be committed, the offensive comments must either be communicated through the mass media or in a public place.
The latter, namely a public place, is defined in the Racial Hostility Act as any highway, or any open space, building or other place to which the public, at the material time, had access or re permitted to have access. It is respectfully submitted that a private residence does not constitute a public place within the meaning of the Racial Hostility Act.
As such, it is hardly likely for an offence of exciting racial hostility or ill-will to be proven if the offending words took place at a place, which in the context of the Racial Hostility Act, is not considered a public place.
The Racial Hostility Regulations was instituted by the then Governor General Richard E Luyt in the latter part of 1964, and in the context of racial violence in the 10 colony of British Guiana. The Explanatory Note of the Regulations was instructive as to its intention and scope. It said that the intention was to create the offence of inciting or attempting to incite racial animosity.
Governments, civil society and international organisations have long recognised the dangers of hate speech. It is now widely acknowledged that racial incitement can foster hatred, violence, distrust and division among persons and communities. It can lead to highly destructive ends.
Guyana is no stranger to such hostility and ill-will. Indeed, now with social media, the incidence of hate speech becomes more harmful. International Conventions now require governments to institute laws which prohibit the excitement of hostility and ill-will by reason of race.
The use of the mass media and social media, to disseminate racially-laced views and to incite racial animus is now a major public concern. One of the early political initiatives of the President of Guyana was to invite the former Presidents for a dialogue. This followed riotous conduct in West Berbice where violence broke out allegedly following comments by political operatives associated with the main Opposition. No one, however, was charged then with making statements which excited racial hatred and ill-will.
Only the PPP/C former Presidents, Donald Ramotar and Samuel Hinds accepted the President’s invitation to the dialogue. And when they did meet, one of the issues of concern was the use of mass media to excite racial hatred.
After the meeting the President was reported as saying that he was aggrieved by the daily doses of race baiting, racial hatred and racial hostility which pervades social media platforms. He pledged to do everything to use the laws to end this behaviour.
In 2015, a lawyer brought totally outrageous and baseless charges of racial incitement. The charges were purportedly brought on the Representation of the People Act which makes it an offence to make public or cause to be published any statement or takes any action which results or can result in racial hatred. The charge was eventually thrown out by the High Court.
But if Bharrat Jagdeo had been found guilty, his political career would have been in tatters. The Constitution of Guyana provides for the disqualification of persons to be eligible for election as members of the National Assembly if those persons have been convicted of seeking to excite racial hostility or ill-will.
The said Constitution also permits free speech. But as with all rights it has limitations. An intention to excite racial hatred is not protected under freedom of expression. You have a right to vent your opinion but not, in doing so, to excite hatred and ill-will against others.
A woman was charged in 2016 with using an App to make derogatory remarks aimed at exciting hostility and ill-will towards then President David Granger in 2016. This was done on a public network application known as Whatsapp. The Court held that the woman was charged under the wrong Act, the Racial Hostility Act and that the charge did not reveal any offence. According to reports, the woman’s lawyer had argued that the woman’s comments did not excite racial hostility.
It is important that in assessing cases brought before the court, that account is taken of the need to satisfy the elements of the offence of exciting racial hostility and ill-will. The failure to satisfy the mandatory elements would render a charge subject to dismissal.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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