Time to reform our laws on hateful speech

The arrest and prosecution of individuals for derogatory, inciteful and hateful comments has once again thrust the country’s balance between free speech and public order into the spotlight. 

The debate is familiar, but it remains unresolved: when does holding people accountable for their words become a legitimate safeguard of public peace, and when does it become a tool to silence dissent?

On the one side, civil society activists and legal experts argue that using the criminal justice system to punish public utterances undermines constitutional guarantees of free expression.

On the other side, proponents insist that some speech poses real risks to national security, public safety and the rights of others, and must attract criminal sanction.

What is clear is that the current legal framework is being applied unevenly and is feeding perceptions of selective justice.

The provisions at the centre of the controversy are Sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29), and Section 76 of the Electronic Communications Act, 2008 (Act 775).

Section 207 criminalises the use of threatening, abusive or insulting words in a public place with the intent to provoke a breach of the peace.

Section 208 punishes the publication of false news likely to cause fear, alarm or disturb public peace, with a defence only if the publisher took reasonable steps to verify the information.

Section 76 of Act 775 extends this to false or misleading electronic communications that endanger life-saving services or public safety. Conviction under these sections can attract fines or imprisonment of up to three and five years, respectively.

These laws predate our Fourth Republic and have been invoked by successive governments against journalists, social commentators, activists and political opponents.

The irony is not lost on observers. Both the National Democratic Congress (NDC) and the New Patriotic Party (NPP) have condemned such arrests when in opposition, only to defend or applaud them when in government.

President John Mahama, then opposition leader, wrote an open letter in 2022 condemning a spate of arrests under these provisions as dangerous to democracy.

In May 2025, NPP flagbearer Dr Mahamudu Bawumia made similar complaints about the harassment of NPP-affiliated commentators.

The contradiction points to a deeper problem: the scope and language of the laws are too broad, giving law enforcement wide discretion and creating room for abuse.

Freedom of expression is a cornerstone of our country’s democracy and is guaranteed under Article 21 of the 1992 Constitution. It is what allows citizens to hold power to account, expose corruption and participate in public debate.

A chilling effect on speech, even unintentional, weakens democratic accountability and discourages civic engagement.

At the same time, speech is not without consequences. Incitement to violence, the deliberate spread of false information that triggers panic, and hate speech targeting protected groups can and do cause real harm.

The state has a duty to protect citizens from such harm. 

The challenge is to do so without criminalising opinion, satire or legitimate criticism.

The solution lies in reform, not blanket retention or repeal.

First, Section 208 should be repealed and replaced with a provision that is narrowly tailored to address false information that poses an imminent threat to public safety, national security or public order. 

Vague language that captures “fear and alarm” without defining the threshold invites abuse.

Second, custodial sentences for speech-related offences should be reconsidered.

As a nation, we repealed the criminal libel law in 2001 to deepen media freedom.

Yet the continued use of Sections 207 and 208 shows that the spirit of that reform has not been fully realised.

The law must evolve to reflect the realities of a digital age where speech spreads faster and wider, but also to protect the space for robust public debate.

The debate will not end here.

Yet, if we are to consolidate our democratic gains, we must ensure that the law protects both the right to speak and the right to be safe from speech that incites harm. 

That requires laws that are clear, proportionate and applied without fear or favour.

Anything less erodes public trust and undermines the very stability the laws seek to preserve.