South Africans kicked off 2016 with a gale of racial violence. Race is, for obvious reasons, a hot button in South Africa. It is, therefore, unsurprising that some are calling for government to take the strongest action possible by, as Minister Nathi Mthethwa calls it, “criminalizing intolerance”.
Most forms of racism and discrimination are already illegal under South African law. The new proposals would go even further by criminalizing racially offensive speech. The proposals trigger a tricky debate about free speech and democracy in the “Rainbow Nation”. [The inverted commas are a symbol of my cynicism.]
In this column I argue that when debating the proposals, we must break the inquiry into two distinct parts. First, we must consider whether Parliament can criminalize racially offensive speech. If Parliament can, we must then consider whether it should criminalize such speech.
I use “racially offensive speech” instead of “hate speech” because there is some debate about whether “racially offensive speech” constitutes “hate speech,” as defined in the Constitution. I argue that it does. You can see interventions by TO Molefe here and Jacques Rousseau here.
Can Parliament criminalize racially offensive speech?
The answer appears deceivingly obvious. It is not.
Section 16(2) of the Constitution (1996) eliminates “hate speech” from protected speech or “free speech”. Sections 16(2)(a), (b) and (c) list propaganda for war, incitement of imminent violence and advocacy for racial hatred (which is based on various listed ground) as forms of hate speech.
The question, then, is whether “racially offensive speech” squares with any of the exclusions in 16(2). The answer is not in the plain text of the Constitution; it depends on how one reads section 16(2)(c): “advocacy of racial hatred”.
My view is that the section must be read expansively, together with other sections of the Constitution, in light of the historical context within which the Constitution was drafted.
Simply, Constitution was not drafted in a vacuum. The text was the outcome of a centuries-long struggle against persecution of black people. The persecution was motivated by racial hatred, among other things, and manifested in violence. The violence took a myriad forms: physical, economic, psychological and emotional. The violence was institutionalized through apartheid – the policy of depriving black people of dignity, liberty and equality.
The Constitution was drafted to end the violence and to deconstruct the institutional structure. It declares in its opening sentence that, “We, the people of South Africa, recognize the injustices of our past.” In light of this recognition, section 1 lists the advancement of human dignity, non-racialism, and non-sexism as some founding values of the new Republic. This is the context within which we must read section 16(2)(c).
It is unlikely then that the Constitution, which recognizes past injustices, would also sanction racial violence. The Constitutional Court said as much in its judgement in Islamic Unity. The Court held that there is no bar to the enactment of legislation to prohibit expressions that impairs enjoyment of other rights (such as human dignity) as well as state interests (such as pursuit of national unity and reconciliation).
In 2000 the Legislature enacted the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Section 10 of PEPUDA provides that, “Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to – a) be hurtful, b) be harmful or to incite harm, and c) promote or propagate hatred.”
The Act empowers the Courts to refer such speech to Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.
All of the above supports, in my view, a positive response — that the Legislature can, and without faulting section 16, criminalize racially offensive speech in a more direct way.
Should Parliament criminalize racially offensive speech?
The question here is whether criminalization is the best measure to promote non-racialism, protect human dignity and advance the nation’s interest in reconciliation? I contend that it is not, because the benefits of criminalization outweigh the costs.
Racially offensive speech corrodes the progress made since the advent of democracy. Insidiously, it dislocates more nuanced discussions about structural inequities; it siphons national attention away from embedded structural inequality towards individual acts of racism.
Individual acts of racism, although important, are not the worst of the lot. The fight to eradicate individual racism should not take precedence over the fight for intersectional justice. (Steven Friedman’s volume Race, Class and Power is an essential reading on the subject.)
Therefore, as a benefit, criminalization would put an end to the distractions and corrosion set on by individual acts of racism and re-focus our energies on structural and institutional inequality.
However, criminalisation will also come with a hefty price tag.
First, enforcement would be costly. It would further stretch policing resources in a country with a serious problem of violent crime. The Police Service and Prosecuting Authority are, at present, struggling to investigate and prosecute the menace of violent crimes.
Second, the judiciary is at capacity and struggling to meet the immediate justice needs of a majority of citizens. Court rolls are longer than Madeleine de Scudéry’s Artamène ou le Grand Cyrus. Time and expense (due to prohibitively high legal fees) mean that courts are out of reach for the poor. Prosecuting petty racists, however toxic or criminal their actions, would advantage their folly over the demands for material justice for the poor.
[I note the counter that prosecuting racism is a form of justice. My retort would be that it is not as imperative.]
Finally, and most importantly, South African democracy is in its formative years. There is a real risk that criminalization of racially offensive speech would have a chilling effect on free political expression against the government of the day. We have good examples (in our neighbours) of the effect of similar laws on political dissent.
While the courts will be the ultimate arbiters of the criminality of an expression, applying the yardstick of guilt beyond reasonable doubt, the humiliation caused by an arrest and the threat of financial ruin while defending against a criminal charge may lead to self-censorship.
In the result, my view, which I admit may change, is that racists must get their comeuppance from Twitter mobs. Online justice is occasionally ineffective (although it feels, at times, like a public flogging).
IMAGE CREDIT: By The Prophet from The World – America, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=2132371.