Striking a balance: Here’s what’s behind SA’s hate speech dilemma

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 Julius Malema supporters at the Equality Court when it decided that the singing of "Shoot the Boer" constituted hate speech. Picture: Judy Lelliott
Julius Malema supporters at the Equality Court when it decided that the singing of "Shoot the Boer" constituted hate speech. Picture: Judy Lelliott

Recent developments in the public domain relating to hate speech and racism have led to Justice and Constitutional Development Minister Michael Masutha proposing a bill to prevent and combat hate crimes and hate speech.

The minister released The Draft Prevention and Combating of Hate Crimes and Hate Speech Bill for consultation and public debate on October 24.

The deadline for submission of public comments regarding the bill is December 1. The underlying motive behind the bill is that it “will create an offence of hate crimes and hate speech and criminalise any conduct which amounts to an attempt, incitement, instigation and conspiracy to commit a hate crime”.

Interestingly, these developments bring to mind the now famous September 2011 judgment in the Equality Court where in the matter between Afriforum and Julius Malema, who was at the time president of the ANC Youth League, Judge Colin Lamont found that the singing of the liberation song “Shoot the Boer” by the latter, constituted hate speech and should not be encouraged.

The newly proposed bill has again starkly reminded South Africa of the highly important and extremely needed national dialogue on the observance and practice of human rights in a transforming society like ours.

The judgment – and subsequent national commentary on the AfriForum and Another v Malema and Others matter – put into perspective serious questions about social values as well as the extent to, and limitations of, using adversarial institutional mechanisms like the courts to mediate and attempt to determine/define morality in society. Given its fluidity, elasticity and approximate distance to power differentials in society, both historical and current, it is very dangerous and unfortunate to assume that the content and character of society’s moral codes is as straightforward and simple as the judgement appeared to suggest, devoid of the very inherent contestations that generally define social identity and behaviour.

In expanding the framework for thinking about and responding to the challenge of hate speech, it might be worthwhile to borrow from Professor Catherine Odora Hoppers from Unisa in her paper When democracy and Tolerance are not Enough: Human Rights, Interdependence and the Challenge of Living Together. She argues that if in a social context, the term diversity refers to the presence in one population of a wide variety of cultures, opinions, ethnic groups and socioeconomic backgrounds then diversity should be manifested in many people contributing their unique experiences to humanity’s culture.

Professor Hoppers says in the same paper that for its part, cultural tolerance should go beyond the collective and individual practice of not persecuting those who may believe, behave or act in ways that one may not personally approve of, but that we should start by appreciating the positive aspects of those whose culture we are interrogating. In other words, we should not just tolerate other cultures but make an effort to reach out and learn these cultures. A more profound form of tolerance will emerge, she points out, when we develop respect, understanding and mutual recognition of others.

Considering Hoppers’ opinion above, one could argue that the dominant mainstream human rights framework in the country should be considered as a work in progress, especially when juxtaposed with the Rainbow Nation tag attached to the country. This assertion is premised on the observation that in penning down our much-acclaimed Constitution of the Republic of South Africa in 1996, maybe in their collective wisdom, the founding fathers and mothers of our new democratic order sought to provide a framework for dialogue and contestation towards the kind of society which was envisioned at the time as well as the value systems that had to accompany such a vision.

In other words, the text and spirit of the provisions in the Constitution, especially the Bill of Rights in Chapter 2, is but a starting point for dialogue and, therefore, the Constitution merely establishes the “rules of engagement” as well as broad parameters for such a discussion.

From this perspective, the Constitution could be interpreted as a framework and basis for formulating and contesting the content and character of human rights in society and, therefore, politics, culture and other forms of social engagement that are necessary ingredients for such a discussion. It could be contested that the human rights framework provided by the Constitution cannot be treated as a generic and “one size fits all” formula, but merely as a stimulus to pursue a national dialogue and consensus towards a common set of values.

As such, maybe the task and charge of the justice ministry should be to stimulate and guide debates on these matters throughout our communities and in academic and intellectual forums so that some kind of national consensus can be reached. Such a consensus and process has to be embraced before any absolute stance on hate speech crimes can be taken in the country. More importantly, such a process should be seen and approached as a historically continuous narrative and as embedded within the realm of organic social relations.

For a country like South Africa, whose history is interred with very serious and at times extremely violent political, social, cultural and economic contestations, the boundaries and confines of morality and perhaps consensus on moral codes is a daunting and quite dynamic challenge. In attempting to answer these and many other questions about Constitutional values in our society, it is my hope that the proposed hate speech bill will not be oblivious to and underplay the importance of conceptually locating our transformation discourse into a properly and appropriately defined context.

The purpose of the new legislation should be to bring into one fold and space, as many competing viewpoints on the matter of freedom of expression and hate speech as possible. The answers to a national consensus and framework for engaging on these flammable and emotive social matters can only be arrived at through allowing and respecting all views and arguments about what constitutes each of these value propositions.

» Busiso Moyo is the Policy and Research Specialist for MenEngage Africa, a Africa region gender justice and transformation programme co-ordinated by Sonke Gender Justice. He is a development sociologist who has contributed to published and unpublished scholarly articles on a broad range of development policy related issues, including poverty, human rights, inequality, sustainability and agriculture.

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