If patriotism is the last refuge of scoundrels, then freedom of expression must be the bigot’s favourite hideout. As I see it, writing and circulating an e-mail suggesting that if you want to create black people you need a wheelbarrow-load full of faeces and another of mud has nothing to do with showcasing the right to freedom of expression, as a case before the Equality Court argued. It is bigotry. It offends the sense of dignity of black people. It must be punished harshly.
Jews, too, will remember that the Holocaust was preceded by floating an idea that they were the nemesis of society whose demise would be the harbinger of a greater and more prosperous Germany. If stopping people from publicly inciting views that resulted in Auschwitz, Odessa and gas chambers everywhere else is advocating for thought police, then I am joining my nearest community policing forum.
The Hate Speech Bill is long overdue. It is late not only because of South Africa’s sorry, bigoted past, but also because of the present need to foster nationhood.
Hard as it may be to believe, there are still people who, even up to this day, are being trained to believe that other humans are children of a lesser god because they do not look like they do nor genuflect before the same altar. The South African government has rightfully been criticized for taking far too long to enact laws which emphatically show that racism is not only socially unacceptable behaviour but an evil to be destroyed.
The Hate Speech Bill seeks to criminalise “any person who in public advocates hatred that is based on race, ethnicity, gender or religion against any other person or group of persons”.
The Bill provides that such advocacy be reasonably construed to demonstrate an intention to “be hurtful; harmful or to incite harm; intimidate or threaten; promote or propagate racial, ethnic, gender or religious superiority; incite imminent violence; cause or perpetuate systemic disadvantage and undermine human dignity; or adversely affect the equal enjoyment of any person’s or group of persons’ rights and freedoms in a serious manner”.
The Hate Speech Bill also gives effect to South Africa’s commitments in terms of the International Convention on the Elimination of All Forms of Racial Discrimination.
This international instrument requires “parties to declare, amongst others, an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin”.
So, contrary to what the self-styled freedom of expression activists are saying, there is no evidence to suggest that the Bill is a sinister ploy by the ruling party to create an Orwellian state where Big Brother watches your every move.
One does not have to be a legal expert to see that something ought to be made of the fact that the draft Bill does say that “artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest, or publication of any information, advertising or notice in accordance with Section 16 [freedom of expression clause] of the Constitution” would be exempt from the law, if enacted.
The Bill strengthens the ideal of “heal[ing] the divisions of the past and establish[ing] a society based on democratic values, social justice and fundamental human rights” — as espoused in the same Constitution the high priests of freedom expression swear by.
The Constitutional Court, in the Mamabolo case, in which the then Department of Correctional Services’ spokesperson Russel Mamabolo challenged a contempt of court ruling against him by claiming freedom of speech, found that “with us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression.
“How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear, though, and must be stated, is that freedom of expression does not enjoy superior status in our law,” said the Constitutional Court.
The same court ruled in the case between the Islamic Unity Convention v the Independent Broadcasting Authority that: “There is no doubt that the state has a particular interest in regulating this type of [free] expression because of the harm it may pose to the constitutionally mandated objective of building the non-racial and non-sexist society based on human dignity and the achievement of equality.”
The Constitutional Court has already found that “freedom of expression is one of a ‘web of mutually supporting rights’ in the Constitution. It is closely related to freedom of religion, belief and opinion, the right to dignity, as well as the right to freedom of association, the right to vote and to stand for public office, and the right to assembly.
“The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial”.
So far from what we are being made to believe, we are not a Zimbabwe in the making, where the rule of law and the courts are ignored and journalists must register with some state agency before they can operate.
And please don’t tell me that just because I am journalist means that each time the phrases “freedom of expression” or “media freedom” are thrown about, I must necessarily sing along.
For, as much as journalists and others concerned with the freedom of media and expression gather each year on October 19 to celebrate South Africa’s Press Freedom Day, we must also remember that there are thousands of graves that serve as monuments to the struggle for the right to human dignity.
Words have often been the weapon of choice of oppressive regimes around the world; and apartheid was not only about blacks and whites swimming on separate beaches.
Another piece of evidence that we are not becoming like our neighbours across the Limpopo, as these prophets of doom suggest, is that they are still allowed to publish their views on the Bill even where they deliberately paint a distorted picture — something the Zimbabwe government calls “publishing falsehoods with the aim of creating despondency and alarm”.
For the record, in case you were wondering, there is no spelling mistake, my last name actually ends with an A and not an O, (Moya not Moyo).