Free State ANC chairperson Ace Magashule.
Julius Malema, now leader of the Economic Freedom Fighters, agreed not to sing “shoot the boer”. Political puppet Chester Missing wants Afrikaans singer Steve Hofmeyr to feel the heat for saying black people were culpable in the creation of apartheid – and Hofmeyr wants Missing barred from complaining to his sponsors.
But this week the case most likely to redefine South Africa’s rules about free speech will take another small step in a journey already six years old, inching towards what seems an inevitable turn in the Constitutional Court, as a former ambassador fights for his right to associate homosexuality with bestiality.
It is gearing up to be quite the fight, pitting potential psychological harm against the suppression of religious expression, and an unrepentant writer against an unremitting human rights organisation.
In mid-2008, when Malema was still in his first year as leader of the ANC Youth League and Chester Missing was not yet a glimmer in the eye of his creator, Conrad Koch, columnist Jon Qwelane took his pen to gay people in a way that brought the complaints flooding in. In a column of just over 400 words published in the Sunday Sun, he nailed his colours to the mast with the headline “Call me names, but gay is NOT okay …” accompanied by a cartoon of a man marrying a goat.
The piece revolved around split opinions on homosexuality in the Anglican Church. Along the way Qwelane praised Zimbabwean President Robert Mugabe for his “unflinching and unapologetic stance over homosexuals” and decried men kissing men in public, and so “shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences'”.
“Homosexuals and their backers will call me names, printable and not, for stating as I have always done my serious reservations about their ‘lifestyle and sexual preferences’, but quite frankly I don’t give a damn: wrong is wrong!” Qwelane wrote.
“I do pray that some day a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the Constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this Constitution ‘allows’ it?”
Anticipating the battle ahead, Qwelane pre-emptively said he would neither withdraw his remarks nor apologise for them, specifically naming the South African Human Rights Commission (SAHRC).
On the back of hundreds of complaints, the SAHRC did indeed take Qwelane to task and, in May 2011, the Equality Court ordered him to apologise and pay R100 000 in recompense for his comments. That judgment was rescinded on procedural grounds later the same year, leaving the matter in limbo until it could be heard again.
But if Qwelane has his way, he will never have to face a hearing on what he had to say, because the law under which he would be challenged would be struck down first.
“We’re saying that the definition of hate speech in the Equality Act goes further than the Constitution, and is thus unconstitutional,” said Qwelane’s lawyer Andrew Boerner. “If that is successful there will be no further argument on this [Equality Court] matter.”
This Friday the high court in Johannesburg is expected to rule whether Qwelane’s constitutional challenge will be heard side by side with his prosecution for hate speech, as the SAHRC would prefer, or if each matter will have its own hearing. The issue should go before court during 2015 either way, where it will hopefully settle by precedent a thorny problem that dates back to the passing of the Act in 2000.
Qwelane, recently returned from Uganda where he served as high commissioner in the South African mission, declined to speak to the Mail & Guardian other than through Boerner. During his four years in Uganda that country attempted to pass legislation targeting the “promotion” of homosexuality.
The South African mission is facing investigations into complaints of corruption and mismanagement, the department of international relations confirmed this week.
Boerner said Qwelane was determined to fight the case to the bitter end, as a matter of principle, which translates into confirmation by the Constitutional Court if his high court bid succeeds.
The SAHRC, likewise, is determined to hold Qwelane to account for what it considers hate speech. That combination holds the promise to finally bring before the courts a complex set of arguments about the difference between hate speech and hurtful speech, and the nature of harassment – arguments that hold potential implications for the likes of Malema, Hofmeyr, religious groups and political parties.
The constitutional protection for freedom of speech is broad, providing outright exclusions only for “propaganda for war” and “incitement of imminent violence”. By contrast, the third and final exclusion to the otherwise unimpeded right to free speech is specific, requiring both advocacy of hatred (based on race, ethnicity, gender or religion) and that such advocacy must incite harm.
Crucial, from Qwelane’s point of view, is the incitement test, as is the fact that sexual orientation is not included in the list.
The Equality Act, or, more correctly, the Promotion of Equality and Prevention of Unfair Discrimination Act, takes a broader approach. It includes sexual orientation, as well as sex and disability, in the list of attributes that could define hate speech – and does not require actual incitement.
Under that law, a successful prosecution for hate speech needs only words that “could reasonably be construed” as intended to be hurtful, or to promote hatred.
That wide definition of hate worries even some who find Qwelane’s stance on homosexuality repugnant, such as constitutional expert Pierre de Vos.
“When a priest or imam targets ‘practising’ gay men and lesbians (as if we need any practice) in a talk and brands us as ‘sinners’, many so-called reasonable people will surely assume that they had the intention to be hurtful to gay men and lesbians,” De Vos wrote in a 2013 analysis of what was then Qwelane’s emerging challenge.
“After all, people who are hurting are more vulnerable and more likely to believe what you have to sell to them.”
Although De Vos and others believe Qwelane may have a legal point – and that his challenge may enhance free speech rules – he will face vigorous opposition.
The SAHRC, the de facto guardian of the Equality Act, believes its reach to be required, and the Psychological Society of South Africa are ready to argue that expressions of homophobia does tangible harm not only to those targeted, but also to society at large.
The Equality Act, as it stands, the Psychological Society said, is important “to stem systemic psychological, verbal and physical violence”.
Qwelane, on the other hand, will argue that there must be a reasonable – and perhaps even conservative – interpretation of concepts such as hate and harassment.
“If you feel you’re being offended, put the paper down,” says Boerner of one of the arguments Qwelane’s team intends to put forward.