On September 22 2020, the Constitutional Court will hear the case of Jonathan Dubula Qwelane v South African Human Rights Commission and Another dealing with the subject matter of hate speech against LGBTI persons. While some parts of society try to turn back the clock on the constitutional protection of vulnerable groups it is once again up to the apex court to provide clarity on the use of hate speech against LGBTI persons.
Twelve years ago, Jon Qwelane authored an article which aimed to offend and dehumanise the gay community. While the Equality Court ruled in 2017 that his article constituted hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), the Supreme Court of Appeal (SCA) set this judgment aside and concluded that the provision that regulates hate speech – section 10 of Pepuda – is unconstitutional. It is now up to the Constitutional Court to decide whether the SCA’s findings are correct and section 10 of Pepuda is indeed unconstitutional.
The Southern Africa Litigation Centre (SALC) has been admitted as an amicus curiae in this matter and provides the Constitutional Court with a comprehensive analysis of international law looking specifically at the elements of hate speech and how it harms the rights and compromises the safety of members of the LGBTI community. While South African laws provide legal protection for the rights of the LGBTI community, anti-LGBTI sentiment exists in many parts of South African society.
Contextualising South Africa’s history: sexual orientation and gender identity, apartheid, torture and the post-apartheid Constitution
During the apartheid-era, same sex acts were criminalised in terms of the Immorality Act. Discrimination, imprisonment of up to seven years and a medical torture programme (the aversion project) were the outcome of a system which now constitutes a crime against humanity.
On May 8 1996, the South African Constitution was adopted, and proceeded to outlaw discrimination based on sexual orientation as the first of its kind. This hugely progressive step was followed by laws aimed to protect the LGBTI community. The jurisprudence developed by the Constitutional Court in post-apartheid South Africa further strengthened the rights of the LGBTI community, enabling previously unheard-of situations, such as the ability of same-sex couples to adopt children and access the same health and financial benefits as opposite-sex spouses.
International law as the specialised body of law
There are numerous submissions before the court focussing on domestic law and the constitutionality of section 10 of Pepuda. SALC’s submission raises issues of international law and their relevance and necessity in the interpretation of domestic laws.
Since the discussion of section 10 of Pepuda entails an interpretation of the right of freedom of expression, any court must consider international law under section 39 of the Constitution. In addition, the text of Pepuda itself emphasises that one of its objectives is to ‘facilitate (…) compliance with international law obligations’.
South Africa is a state party to the International Covenant on Civil and Political Rights, the International Covenant on the Elimination of Racial Discrimination and the African Charter on Human and Peoples’ Rights. All these international agreements pose obligations on the state,to protect freedom of expression, prohibit any form of hate speech and protect LGBTI persons from any kind of discrimination.
This means that any interpretation of a South African hate speech provision has to conform to those international agreements. While the SCA gave a brief overview of international law on the issue of hate speech against LGBTI persons, its analysis of international law is far from comprehensive.
By contrast, SALC demonstrates in its submission that there is a determinable threshold in international law when expression becomes hate speech. Based on the jurisprudence and general comments by international bodies, SALC argues that international law, as a specialised body of law, provides sufficient content to inform the language of section 10 of Pepuda. Therefore, it cannot be argued that section 10 of Pepuda is too vague and unconstitutional.
As much as this case is about the prohibition of hate speech, it is also about discrimination and the vulnerability of LGBTI persons. In this context, SALC’s submission further highlights that the term “gender” as it is used under section 16 of the South African Constitution is not binary. Through the lens of international law, SALC illustrates that the definition of gender moves towards a socially constructed concept, which exceeds a definition that includes only the biological sex. This follows that “gender” should and must include reference to sexual orientation and gender identity.
The decision by the Constitutional Court: where do we go as a society?
Gender produces vulnerabilities linked to the way societies organise, understand and accept male and female roles and how they exclude those who transgress the accepted and expected boundaries of such roles. The speech in the Qwelane case constitutes a gold standard of hate speech which dehumanises LGBTI persons, deprives them of their dignity, and aims to exclude them from society and constitutional protections. Based on South Africa’s international obligations and the universal character of the most fundamental human right, human dignity, this matter cannot be decided solely on the basis of domestic law, particularly if such law does not live up to international standards.
Sexual orientation should therefore be treated in the same way as race, ethnicity and religion, which are covered by hate speech and hate crime laws, because sexual orientation is a characteristic that is fundamental to a person’s sense of self.
In response to the cruel oppression of the apartheid system, South Africa in 1996 adopted a Constitution that was ahead of its time. It is the same progressive Constitution that allows us to turn to international law in order to meet international standards. The decision of the Constitutional Court will be crucial in guiding the direction South Africa should be moving towards as a tolerant, rights-abiding and diverse society.
Atilla Kisla is a legal consultant for the international criminal justice and civil and political rights programme at the Southern Africa Litigation Centre