A lawyer representing controversial American speaker Ayo Kimathi has said his placement on the stop list was unlawful.

While Mr Kimathi attacked homosexuality and interracial relations in a presentation at the Liberty Theatre, lawyer Eugene Johnston told the Supreme Court the comments fell short of hate speech.

Mr Johnston further argued the decision to place Mr Kimathi on the stop list based on his comments was unconstitutional, and that the Human Rights Commission had not carried out the necessary steps to launch an investigation. Mr Kimathi, who refers to himself as the “Irritated Genie”, was one of two speakers brought to the island in September 26, 2015 by Bermudian David Tucker to give a presentation on African history and culture.

During his presentation, Mr Kimathi described homosexuality as a cancer that originated from white Europeans along with other forms of “sexual deviance” including child molestation, bestiality, rape and interracial sex.

Mr Kimathi also came under scrutiny for comments made on his website, War On The Horizon, on which he has endorsed the killing of whites and “black traitors”.

A section of the website stated: “In order for black people to survive the 21st century, we are going to have to kill a lot of whites — more than our Christian hearts can possibly count.”

Days after the presentation, Michael Fahy, then Minister of Home Affairs, placed Mr Kimathi on the stop list, describing the speech as “entirely offensive, propagating hatred and messages of intolerance and discrimination” and accused Mr Kimathi of unlawfully selling promotional materials at the event.

Meanwhile, the Human Rights Commission announced it was investigating the matter after receiving a series of complaints about the presentation.

However, Mr Kimathi and Mr Tucker launched a legal action against the minister and the commission, challenging both the investigation and Mr Kimathi’s placement on the stop list.

Discussing the presentation, Mr Johnston said that the lecture was aimed at presenting information about African culture, and that there was a factual debate as to whether traditional African culture embraced homosexuality.

“History is nothing unless it is contextualised,” he said. “The lesson is the opinion of the presenter. That is the democratic tussle that took place. That’s where the public interest debate is.”

After telling the court the story of the Boukman Rebellion in Saint-Domingue — now Haiti — in which Dutty Boukman called for the killing of Europeans on the island, Mr Johnston asked: “Is the mere raising of this story in the way I raise it, and is the ideas enshrined in them incitement of hatred and violence?

“Do they prove ill will against people?”

Mr Johnston said that while there is a limit to free speech, the question is where the line is drawn.

“No matter what approach you adopt in this country, this doesn’t cross the line of hate speech,” he said. “I’m not arguing that it’s correct or not offensive. I’m not saying it’s not abusive.

“The question the court has to decide is whether it constitutes hate speech.”

He also took aim at the decision-making process, saying that there is only limited information about what facts the minister had at the time of his decision. Other than a statement made by the minister to the media, Mr Johnston said the only other document made available to that point was a memo from the chief immigration officer sent three days after the decision was made and postdated.

“These are fundamental rights, and the public demands more so decisions are not seen to be arbitrary,” he added.

Mr Johnston argued the minister should not have been able to place Mr Kimathi on the stop list because the comments made in his speech were protected by the Bermuda Constitution, even though he was no longer on the island when he was placed on the stop list.

And while the minister was able to place persons on a stop list based on information received prior to their coming to the island under a separate clause, he argued that websites and newspapers were not sufficient, saying: “It’s my submission that refers to other diplomatic sources.”

Regarding the Human Rights Commission, he said the terms of reference for any investigation need to be determined before an investigation can begin, and no such terms of reference have been made available in evidence.

Mr Johnston also noted that the commission announced publicly that they would be conducting an investigation, which he said “pointed a finger” of racial bias at the complainants, risking relationships with employees and others.

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