Dookoom's video: Is censorship unconstitutional?
Artists may be exempted from being guilty of hate speech in certain pieces of legislation. But what hate speech actually means is a matter of interpretation because the higher courts are still trying to establish a definition.
Most lawyers agree that the central issue to be taken into account, whenever someone is accused of hate speech, is context.
Freedom of expression versus hate speech or advocacy to incite violence is once again in the news thanks to a few lyrics penned by rap group Dookoom and the accompanying music video.
Afriforum said on Sunday it will take the matter to court unless the band retracts the song and video within 24 hours. As of Wednesday morning, the band had not done so, and Afriforum did not go to court. Afriforum has, however, submitted a complaint to the South African Human Rights Commission.
A finding of incitement or advocacy of hatred by a court would be binding, according to Sheniece Linderboom, head of the Freedom of Expression Institute’s Law Clinic. The song would effectively be banned, should Afriforum approach a higher court.
Hate or debate?
Afriforum says that the song is a “vulgar form of hate speech”.
Titled Larney Jou Poes, the song grapples with the plight of farm workers, in light of the De Doorns protests.
The song’s video shows images of workers burning tyres on farms. Its chorus is a play on the children’s Bible song, Father Abraham: “Farmer Abrahams had many farms,/ and many farms had farmer Abrahams,/ I work for one of them and so would you,/ So let’s go burn ‘em down.”
Section 16 of the Constitution protects freedom of expression. But freedom of expression does not extend to: propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Afriforum says the song “romanticises violence” but Dookoom says the purpose of the song is to spark debate, not violence. This might be key, as some lawyers interpret the phrase “incitement of imminent violence” to mean the offender must have actively tried to get people to respond violently.
“The question is whether, in the context of the speech, it amounts to hate speech or protected expression,” says Dario Milo, partner at law firm Webber Wentzel and a media and information law expert.
Critically, this context is music.
“Here, the first important point is that the speech argued to be objectionable is contained in a song. It might be different if the words were chanted at an emotionally-charged gathering, where there may be a likelihood of physical harm resulting. So the context of the expression suggests that it cannot amount to hate speech,” Milo says.
The second key issue, according to Milo, is that the Constitution defines hate speech narrowly, “and rightly so ... the Constitution makes it clear that the speech must advocate hatred based on, for example, race, and constitute incitement to cause harm. You must therefore instigate or actively persuade someone to cause harm”.
Open for interpretation
Again, context is crucial to the Dookoom debate.
This is not just a philosophical or academic debate: the law sometimes exempts artists from being found guilty of hate speech in the interests of protecting freedom of expression.
Artistic expression is exempt even in the Equality Act, which defines hate speech more broadly, says Milo. He thinks this would apply in the Dookoom case.
Linderboom points to the Promotion of Equality and Prevention of Unfair Discrimination Act. Here, artists are exempt from hate speech if their “artistic expression” is deemed bona fide.
“Bona fide artistic expression is expression made in good faith – in other words, without intention,” Linderboom says.
But the test for hate speech, as stated in the Act, and the practical application thereof, “is a little more foggy”, she says.
The Act’s provisions are broader, but are not necessarily in line with Section 16 of the Constitution. Linderboom says this needs to be addressed.
The broader problem is that findings of guilt against artists for hate speech have potential ramifications for access to information. The reason is these findings tend to mean censorship “by the powers that be” or self-censorship.
This is why freedom of expression is so closely guarded. Limiting artistic expression can cause problems for journalists, academics, and anyone wishing to express their opinions publicly.
Linderboom says it remains important that while limitations should not be in place except in specific instances, generally, they are there for a good reason.
“One must remember, however, that our Constitution was drafted in light of our history of apartheid and with the hopes of making sure that such atrocities do not repeat themselves. Freedom of expression is a constitutionally protected right, under which right there is specifically prohibited speech, with reason,” Linderboom points out.
“Therefore if speech falls under prohibited speech and is not reasonable and justifiable in an open and democratic society, it will not be protected.”