Court faults the National Cohesion and Integration Commission for the unprocedural classification and ban of the terms hatupangwingwi and watajua hawajui as hate terms.

Brief facts

The National Cohesion and Integration Commission (the respondent) was a body in charge of promoting national identity and values, mitigated ethno-political competition and ethnically motivated violence, as well as elimination of discrimination on ethnic, racial and religious basis and promoted national reconciliation and healing. Part of their mandate was classifying and banning terms that they considered to be hate speech.  On April 11, 2022 the respondent classified the words hatupangwingwi and watajua hawajui as hate speech and banned the words.

The petitioner challenged the decision of the respondent in the instant petition to ban the aforementioned terms. The petitioner faulted the respondent for unilaterally classifying the words as hate speech and contended that the ban on the words was irrational, unreasonable, made in bad faith, ultra vires and a breach of its right to fair administrative action.

Issues

1. Whether the mandate of the National Cohesion and Integration Commission to classify and ban hate terms/speech was an administrative action that was amenable to judicial review.
2. Whether the National Cohesion and Integration Commission followed the proper procedure laid in its decision to ban and/or classify the terms hatupangwingwi and watajua hawajui as hate terms.
3. Whether the decision of the National Cohesion and Integration Commission to ban and/or classify the terms hatupangwingwi and watajua hawajui as hate terms violated the petitioners right to fair administrative action.

Relevant provisions of the law

Fair Administrative Action Act, Act No. 4 of 2015 

Section 5

5. Administrative action affecting the public

(1)      In any case where any proposed administrative action is likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, an administrator shall 

(a)      issue a public notice of the proposed administrative action inviting public views in that regard;

(b)      consider all views submitted in relation to the matter before taking the administrative action;

 (c)      consider all relevant and materials facts; and

(d)      where the administrator proceeds to take the administrative action proposed in the notice 

(i)        give reasons for the decision of administrative action as taken;

(ii)       issue a public notice specifying the internal mechanism available to the persons directly or indirectly affected by his or her action to appeal; and 

(iii)       specify the manner and period within the which such appeal shall be lodged.

Held

1. Article 47 of the Constitution granted every person the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Section 2 of the Fair Administrative Action Act (FAAA)defined an administrator as any person who took an administrative action or who made an administrative decision. The impugned action was an administrative action within the meaning of the FAAA as it affected the legal rights and interests of the applicant and other citizens who may be inclined to use the targeted words. The respondent was an administrator as defined in the FAAA in the context of the action taken.
2. The applicants freedom of speech was affected by the decision of the respondent. The impugned action being an administrative action within the meaning of the FAAA brought it directly within the purview of the courts jurisdiction conferred by section 9(1) of the FAAA.  It was an action amenable to judicial review.
3. Where an administrative action was likely to materially and adversely affect the legal rights or interests of a group of persons or the general public, section 5(1) of the FAAA safeguarded the rights of such a group of persons or the general public by requiring an administrator to issue a public notice of the proposed administrative action inviting public vies or considering any views submitted relating to the action. There was no evidence that the respondent issued the notice or considered all material facts. Though the respondent appeared to have given reasons for the administrative action, giving the reasons at the tail end of the impugned action in the absence of hearing the affected parties could not in all possibility sanitize the action. The respondent had not issued a public notice specifying the internal mechanism available to the persons directly or indirectly affected by the action to appeal and the manner and period within the which such appeal was to be lodged.
4. The right to be heard was cardinal and could not be derogated. The respondent undertook a crucial and sensitive role in promotion of national cohesion in an environment of pronounced diversity. The statutory power donated to it, however, had to be exercised within the law and in strict observance of individual and collective rights enshrined in the Constitution and the law. However well-meaning the respondent could not get away with unilateral decisions that affected the citizenly without regard to their constitutional and legal rights topmost of which was the right to heard.
5. Every administrator bestowed with statutory powers to make decisions or to take actions that adversely affected an individual or group of individuals was not to lose sight of the provisions of sections 4 and 5 of the FAAA and to specifically accord such person(s) notice of intended action, hear their views, consider all relevant matters, give reasons for the decision taken and inform them of the right and manner of appeal. The respondent did not follow due process before taking the impugned action. The applicants rights enshrined in article 47 of the Constitution and operationalized through the FAAA were trampled upon.