Phumla Mthala
Crossfire
Rehana Rossouw questions the South African Human Rights Commission’s recommendation that the National Directorate of Public Prosecutions should consider a prosecution of Shane McCallaghan, the alleged producer of a racist CD (“Have we lost our sense of humour?”, February 2 to 8).
While the commission recognises McCallaghan’s right to freedom of expression, it is deeply concerned by the seriousness of racism allegations and considers the contents of the CD to constitute hate speech.
Rossouw questions where the commission draws the line in terms of freedom of expression and hate speech. There are international standards with regards to the right to freedom of expression by which countries have to abide. However, the application of this right can be limited to the extent that the limitation is justifiable in an open and democratic society based on human dignity, equality and freedom.
Boundaries of freedom of expression vary from one society to another, and from one area of expression to another. They are linked to the different societies’ history, traditions, political climate and other factors. This makes room for societies to determine these boundaries. The commission’s position on this matter is informed by the Constitution, which governs conduct in our country. South Africa provides an internal limitation to freedom of expression.
Our Constitution provides that everyone has the right to freedom of expression, which includes the freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity, and academic freedom and freedom of scientific research.
However, the Constitution goes further to say that this right does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion that constitutes incitement to harm. Hate speech is expression that is abusive, intimidating, insulting and harassing.
One of the greatest challenges facing South Africa is to achieve racial reconciliation, equality and dignity for all its citizens. There is a need for government and the Constitutional Court to define how far someone can go in insulting others or advocating hate against others. Our Constitution says that advocacy of hatred based on race, ethnicity, gender and religion will not be tolerated. Thus the commission, as a constitutional body mandated to give effect to the Constitution, expressed its concern over the racist CD.
Notwithstanding the author’s interpretation and understanding of freedom of expression, it should be noted that the South African and American positions on freedom of expression are based on two totally different systems of jurisprudence.
The United States has a very liberal approach towards freedom of expression, and thus a comparison between South Africa and America would not be justified.
Another interesting debate raised in the article is that of politics of identity. This is specifically where she asks the commission to prosecute the distribution of CDs by African Americans with such terms as “niggers” a term considered an offensive reference to other African Americans.
The practice of one group of people using pejorative terms towards themselves in referring to their own kind is called reappropriation. This refers to a process where a group of people who have been oppressed or discriminated against use the same terms or phrases as their oppressors use to refer to themselves.
This is done with the understanding that these phrases or terms are redefined and given a new meaning and understanding that is oppositional to the dominant one. This process can also be seen as people in the margins trying to centre themselves. This is often done to counter a dominant discriminatory practice and thus it arises in a different context and cannot be equated to racism or sexism, which are dominant discriminatory practices.
With regards to profanity, there have always been remedies for profanity such as actions for defamation and crimen injuria.
However, with the new constitutional order, we cannot rely on these alone. There is a need to bring the law into line with the new order that we aspire to as a country. That is a social order that seeks to ensure that there is a sufficiently strong legal framework to promote and protect the values of equality and human dignity. The Constitution, the Promotion of Equality Act and the Prevention of Unfair Discrimination Bill seek to do exactly that.
The Human Rights Commission does not see itself as thought police but, as stated in our mandate, we should promote and ensure respect of human rights. That mandate guides our actions. We saw it fit to act decisively on matters of the kind represented by the offending CD.
Thus, in the press statement quoted by the author, the commission condemned the CD and said that it would make a submission to the National Directorate of Public Prosecution that it investigate the matter and consider a prosecution in the public interest. The Commission further urged all South Africans to condemn actions and conduct motivated by racism, and individually and collectively to commit themselves to actions and programmes that seek to build a just society free of prejudice and hatred.
Phumla Mthala is media officer at the Human Rights Commission