Constitutional Hill

Freedom of expression

Xenophobic statement: Is King Zwelithini guilty of hate speech?

Durban is being engulfed in Afrophobic/xenophobic violence after King Goodwill Zwelithini in a speech delivered in March fanned the hatred and envy among some South Africans towards black foreigners living in our country. Is the King guilty of hate speech and if so, what can be done to hold him accountable for his dangerous and reckless utterances?

Many people have forgotten that until the mid-nineteen nineties most liberation leaders viewed King Goodwill Zwelithini as an apartheid stooge aligned with the then National Party government’s Bantustan policy. In the eyes of progressive activists and organisations, his close relationship with Inkatha (which, at the time, was involved in a bloody proxy war with the ANC and the UDF, funded by apartheid securocrats) had turned him into someone widely viewed as a sell-out, as someone opposed to the ANC-led liberation of South Africa.

But in 1994 democracy came to South Africa and the ANC was elected into government. In a tactically brilliant move the national government took over the payment of traditional leaders to prevent the Inkatha controlled provincial government in KwaZulu-Natal from exerting control over the King and other traditional leaders aligned with Inkatha.

(Of course, before 1994 traditional leaders were paid by the apartheid state. After the passing of the Bantu Authorities Act in 1951, they became administrative agents of the apartheid state in the areas designated as “homelands” and many traditional leaders who refused to do the apartheid regime’s dirty work, were ousted by the National Party government.)

With the help of further skilful negotiations – facilitated by President Jacob Zuma – King Zwelithini (perhaps with one eye to his financial well-being?) became “non-aligned” almost overnight. This contributed immensely to the peace process in KwaZulu-Natal and helped to bring the bloody war that was still raging between Inkatha and the ANC in that province to an end.

When you turn the clock forward to March 2015 and listen to King Zwelithini’s speech to the Pongolo community, you still hear the sentiments of the same conservative patriarch who, before 1994, had aligned himself closely with Inkatha, an ethnic-based organisation that vehemently opposed the (then) progressive pan-Africanist policies of the ANC. In his disastrous, ignorant and (it must be said) bigoted speech in March the King said (see video above):

[W]e talk of people [South Africans] who do not want to listen, who do not want to work, who are thieves, child rapists and house breakers…. When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly goods hanging all over our shops, they dirty our streets. We cannot even recognise which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk, I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us to fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries (loud cheers).

The King later lambasted the media for “choosing to deliberately distort what was an innocent outcry against crime and destruction of property”. But if you listen to the audio of his speech, it is clear that the King’s words targeted all foreign nationals (although, one could argue, in the context of his words he was only referring to black foreigner nationals). The King was therefore not truthful when he later claimed his speech was a general outcry “against crime and destruction of property”.

In his speech the King identified what he perceived to be the problem (“lazy” South Africans; foreigners “dirtying our streets”) and proposed a way to “fix” the problem: To have all foreigners (whether legally documented or not, whether law-abiding or not; whether refugees fleeing wars or not) pack their belongings and go back to their own countries.

He further suggested that he was different from other politicians who are democratically elected and rely on “their votes”. Instead he was another kind of politician who did not have to rely on votes (given that he is not elected at all and has no democratic mandate to worry about). He could therefore suggest what our government leaders could not suggest or were too cowardly to suggest, namely that all black foreigners must leave South Africa and must be “assisted” to do so.

Because a traditional leader of the highest rank uttered the words, some might argue that it would be disrespectful of traditional culture and mistaken (especially for a white person like myself) to criticise the King or to suggest that he could be found guilty of hate speech in an Equality Court.

In a constitutional monarchy in which a monarch merely fulfils a symbolic and ceremonial role, this argument might have held water. But when that monarch sees himself as a politician (as King Zwelithini’s speech suggests he does) and makes highly controversial and inflammatory statements, this argument cannot possibly hold.

To argue otherwise would be to elevate King Zwelithini above all criticism and above the law. But this is not Swaziland or Jordan and we do not live in an absolute monarchy. Instead we live in a constitutional democracy in which section 1 of the Constitution enshrines the Rule of Law as one of the founding values of our democracy. This means that everyone – regardless of title or position – must be subject to the same laws and can and should be judged in terms of the same laws applied in the same manner.

Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (also known as the Equality Act) prohibits any person (and in legal terms the King ís a person) from publishing, propagating, advocating or communicating words directed against another person based, amongst others, on that other person’s race, sex, gender, sexual orientation or foreign nationality, if those words:

could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; [or] promote or propagate hatred.

Section 12 of the same Act also prohibits any person from disseminating or broadcasting any information “that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person”.

Does the King’s Afrophobic/xenophobic statement rise to the level of hate speech as defined in the Equality Act? The Act gives effect to the anti-discrimination injunction contained in the Constitution and its meaning must be interpreted in the light of the Constitution and the values enshrined in it. As is often the case with constitutional matters, context is all-important when determining whether speech rises to the level of hate speech (something that right-winger white South Africans often fail to grasp).

What is the context in which the King made his statement? As the Constitutional Court stated in its judgment of Khosa and Others v Minister of Social Development and Others, foreigners (even those who are permanent residents and thus legally entitled to almost all the same rights as citizens) are particularly vulnerable. As Justice Mokgoro stated:

foreign citizens are a minority in all countries, and have little political muscle… [C]itizenship is a personal attribute which is difficult to change… It is also true… that in the South African context [before 1994] individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race.”

The remarks of the King were made to members of the Pongolo community during a “moral regeneration event”. The community members can be heard cheering loudly after the King said that “foreign nationals” should “pack their belongings and go back to their countries”. Moreover the King is an important leader in the region (albeit not one with a democratic mandate) and framed his statement in terms of “necessary truths” which other politicians were too scared to utter. Lastly, the King signalled that he knew the statement was problematic as he prefaces it by stating “please forgive me”.

In terms of the Equality Act it is not necessary to demonstrate that the words of the King in fact led to (or contributed to) the Afrophobic/xenophobic attacks around Durban, attacks which have already resulted in the killing of at least 5 foreigners.

All that must be shown is that a reasonable observer would conclude – looking at the context – that the King’s words could be interpreted to have had the intention to be hurtful; be harmful or to incite harm; or to promote or propagate hatred against foreigners.

As I have argued before, section 10 of the Equality Act may be unconstitutional as it casts the net very wide and limits speech that should be constitutionally protected. But until the section is constitutionally challenged, it remains in operation.

Given the context within which the words were uttered it is difficult to avoid the conclusion that the King would be found guilty of hate speech if charged. At the very least a reasonable person may conclude that the words of the King could be construed as having had the intention of being harmful to foreigners in that it may, at the very least, have been intended to force the government to expel all (black) foreigners – whether legally residing in South Africa or not – from the country.

Perhaps progressive activists who still remember the days before 1994 when the King was viewed in many circles as an anti-ANC Bantustan leader, would be bold enough to approach the Equality Court with a view to have the King found guilty of hate speech.

If the relevant judge finds the King guilty of hate speech, said judge may even be tempted to order that the King (as punishment) forfeit all public benefits (including the R50 million contributed to his household) for a period of one or two years. After all, there are some evidence that while the King may not take kindly to criticism from politicians he may well be more willing to change his position if he believes that his financial livelihood was being threatened.

Steve Hofmeyr at the KKNK: why the idea of false equivalences is destructive and wrong

The idea that fairness and justice requires identical treatment of all people in equivalent situations regardless the context or the relative power of the persons or institutions involved, is attractive to many powerful and privileged people with vague and undefined liberal inclinations. The problem is that the idea is destructive, illiberal and deeply unfair.

On Monday morning at the Klein Karoo Nasionale Kunstefees (KKNK) in Oudtshoorn – the “N”, here, is as vital as the “R” in Proes street or the “N” in Pniel – I was involved in a discussion on the right to freedom of expression and on whether the KKNK was correct not to invite racists like Steve Hofmeyr to the festival or to provide them with another platform.

The discussion was both frustrating and revealing. Frustrating because not all the speakers avoided the trap of self-indulgence and narcissism. Revealing because it soon became clear that a sizeable number of audience members were unhappy with the decision of the KKNK management not to provide Hofmeyr and other racists with a platform to perform and to take part in debates.

Now, it might well be that some of the speakers at the debate were yearning for the presence of Steve because he dares to express the racist fears and prejudices that they themselves harbour but are too scared, hypocritical or polite to express (at least in public).

On at least two occasions during my three-day stay at the festival, I encountered the most shocking and brutal forms of racism from festival-goers. I suspect that these bruising encounters (I was confronted by the use of the “K” word and an expressed desire to recreate exclusive “whites” only spaces) framed – for me, at least – the discussion I was involved in. (It was, perhaps, of some consolation that one of the encounters revealed such a catastrophic inability to reason, that it made me wonder whether the person was not in need of strong anti-psychotic medication.)

Because I have lived in South Africa for most of my life and am excruciatingly aware of my own continuing struggle to rid myself of the racism, the sexism, the homophobia and the HIV prejudice that still stalk the land like an incurable disease, I have to admit that I usually assume the worst of the (“white”) strangers that approach me in public places.

I try to wear the cynicism about my own kind as a form of armour to protect myself against the hatred and bigotry that sometimes seems to saturate our society, just like the stench of shit saturates the air around those portable toilets in Khayelitsha.

All “white” South Africans might not always realise it, but at least sometimes the horrid actions or words of fellow “white” people are imputed to all “whites” – just as racist logic have always demanded (and still does) that the inexcusable actions or words of one “black” person be imputed to all “black” people.

When I thus encounter fellow “whites” who exhibit some sensitivity about racism and even a tentative willingness to confront their own prejudice and that of others, I often feel pathetically relieved and grateful.

And it does happen – imperfectly; often haltingly and with confused earnestness; sometimes in a disastrously self-righteous and self-congratulatory manner – but some “white” South Africans do try to grapple with the fact that 350 years of colonial conquest and apartheid have deformed our society and, at best, turned us into strangely disconnected beings.

This willingness of “white” people to try and confront race and racism is often reflected in a certain alertness to the way power determines how a specific instance of the politics of race plays out. This happens when us “white” people – not ever having been on the receiving end of structural racism and thus not forced every single day to live with its horrors – nevertheless attempt to get to a place (a place we probably can’t ever get to), where we will constantly be aware of how black people experience the structural violence of racism that surrounds us and that we are often implicated in.

It reminds me of the attitude towards shit captured in a poem of Antjie Krog. In the poem Krog describes the horror of a visit to a filthy toilet while menstruating, with her handbag clenched between her teeth and her blood-red tampon (folded into bank deposit slips) clutched in her hand.

pis ek rillend verstard effens hurkend/ tussen my bene deur/ in ‘n toiletbak tot in die helfte opgehoop/ met minstens vier verskillende kleure kak/ elke senupunt van weersin orent om mal te word/ as maar net ‘n enkele druppel op teen my sou spat. (I piss shuddering, rigid, half squatting/ between my legs/ into a toilet bowl heaped halfway full/ with at least four different colours of shit/ every nerve-ending of aversion alert to go mad/ if even a single drop would splash against me.)

In the debate at the KKNK I argued that if we want to judge the correctness of the decision by the festival management not to provide Hofmeyr with a platform, we must take into account the disparities in power between different people and institutions and the different effects divergent forms of expression have on different human beings formed by different experiences.

We should not insist that as a matter of principle the right to freedom of expression requires us to treat all forms of speech in exactly the same manner. Neither is it conceptually tenable to believe that all decisions to censure a person for what he or she says should be viewed as equally problematic.

Context matters.

And who wields power and how much power that person or institution wields will have a significant influence on whether we decide whether the limitation placed on freedom of expression is constitutionally and ethically acceptable or not.

The test is one in which different interests must be balanced against each other in complex ways. The more drastic the limit on free expression, the more skeptical we should be of that limitation. In contrast, the more drastic the effect of that expression on the human dignity of others, the easier it would be to justify limiting the expression. The number of permutations is infinite and in each case we have to balance all the interests in a manner that protects both the freedom and the dignity of all people.

The state and its institutions have the power to incarcerate and (as we have seen at Marikana) to kill its citizens. The state consequently has enormous power to silence different, controversial or unpopular forms of expression. The spectre of the abuse of state power to limit expression in order to advance narrow political, sectarian or economic interests is high. I am therefore very hesitant to endorse state censorship of expression. In my view, the power of the state should only be used to limit the most extreme forms of hate speech.

In different contexts different individuals and private institutions do not have the same power to circumscribe forms of expression that are hateful, unpopular, strange or that threaten the commercial interests of individuals or companies.

If a private individual decides not to invite Steve Hofmeyr to dinner because of his racist views or because he sings Die Stem, it would have no effect on Steve or those who think like him or support him.

If a large company refuses to sponsor a festival where Hofmeyr performs, it will have a more drastic (but not absolute) impact on his freedom of expression. Seeing that he would still be able to attend other festivals, organise his own concerts (in Orania and elsewhere) or to take to his Blog or Twitter to express his bigotry and – indirectly – that of his supporters, the limitation on his freedom of expression is not absolute.

But from both a constitutional and ethical point of view, this is not the only factor to consider. The nature of the expression and the nature of its effect on others must also be considered. Now, from an ethical point of view I would contend that it is undesirable for an arts festival catering to a diverse audience to refuse to host artists or to disallow the performance of plays merely because the material may offend certain sections of the public.

This is so, first, because it would make it more difficult for others to see the performances or plays and second, because festival-goers should ideally have a choice to buy tickets and to attend the plays or performances it chooses, based on their tastes and values. But, thirdly and most importantly, the offensive words or ideas do not call into question the basic humanity of anyone, nor does it disrespect the inherent human dignity of anyone.

Performances and plays that offend the sensibilities of some do not undermine the constitutional injunction to respect the inherent human dignity of all. In fact, one could argue that censoring such performances and plays would in fact infringe on the dignity of individuals, because it would treat people as empty vessels with no agency of their own. Individuals are treated as passive bystanders in whose interest decisions should be made in the name of “good taste” or “respectability”, which will be decided on by a few gatekeepers who may well bend to the wishes of large corporate sponsors who might wish to censor any radical critique of corporate greed or complicity in exploitation.

In most cases the specific worldview, political orientation, religious views, other values and cultural assumptions of individuals will mediate their response to the work of an “artist” (I use the latter term generously to include the concerts of Hofmneyr).

A very religious person may be extremely offended by an artist like Jack Parow who swears heavily on stage. A homophobic bigot may find two men or two women kissing on stage disgusting or disturbingly erotic. A progressive person may find a play based on an Ayn Rand novel offensive because of the message of selfishness or the lack of empathy for the vulnerable people reflected in the play.

In fact, at the KKNK several conservative theatregoers walked out of an Afrikaans adaptation of Anton Chekhov’s The Seagull because they were disgusted with the use of swearwords like “naai” and “fok”. (Personally I loved the play, but I believe those who walked out had every right to do so.)

The examples I provide above centres on reasonable disagreement about our values and about how best we can live an ethical or meaningful life. Such reasonable disagreements are the lifeblood of a democracy.

Freedom of expression must be protected exactly to allow this reasonable disagreement to flourish (even in the form of irrational outrage and the expression of disgust). A space in which many ideas (also ideas that are unpopular or that offend the majority) can be expressed, safeguards the freedom of individuals to choose for themselves what to think and feel and how to live their lives. In a democracy it is not desirable that the management of an arts festival (committed to constitutional values) decides on behalf of festival-goers about matters of taste and decorum.

But I contend that the matter is different when we deal with a performer who incessantly makes racist, sexist or homophobic statements and denies the basic humanity of others or where a play uncritically endorses and perpetuates racism, sexism and homophobia.

In an open democracy racism, sexism and homophobia cannot form part of a debate in which reasonable disagreement remains in play.

When we begin to treat the question of whether some people are fully human (and thus deserving of respect and concern regardless of their race, their sex or their sexual orientation) as part of a reasonable debate (and when those who contend that some people do not, hold considerable social and economic power), we legitimise the racism, sexism and homophobia and create an atmosphere in which the denial of the basic humanity of people who are on the constant receiving end of bigotry are legitimised.

We send a signal that it is not shameful, nor a basic attack on the humanity of fellow citizens, to question their right to exist equally and in full dignity with others. We claim the right to treat individuals not as humans but as things over which we may exert godlike authority. We create a space in which it becomes acceptable to deny others the sense of well-being and self-respect that we demand for ourselves. We endorse, either directly, or through omission, the attack on their humanity and in the process we dehumanise ourselves.

When we do not signal that we consider the racist, sexist or homophobic views objectionable, we create the impression in the minds of many festival-goers (and the wider community they belong to) that their hatred and bigotry and their refusal to recognise the full humanity of black South Africans is a reasonable, even noble, response to what they perceive to be the confusing and threatening world they live in.

Forms of racist, sexist and homophobic speech are thus fundamentally different from other forms of expression which we disagree with or that make us uncomfortable.

Because such forms of racist speech potentially have far more devastating effects on the well-being of “black” South Africans (whom “white” South Africans systematically oppressed and attempted to rob of their humanity over 350 years), a decision by the KKNK not to provide a platform for a person lauded in certain circles partly because he proudly engages in racist speech is not only permissible but, I would argue, an ethical  (if not a legal) imperative.

“Unparliamentary speech”? There is no such thing.

In the no confidence debate in the National Assembly this week ANC Chairperson Baleka Mbete, who sometimes also moonlights as Speaker, ruled that it was “unparliamentary” to call President Jacob Zuma a “thief”. At present there is no Parliamentary rule, nor any standing order or resolution, which prohibits or regulates “unparliamentary” statements made by an MP. The Speaker therefore had no legal authority to make the ruling and her ruling was unlawful.

In a recent judgment, the Constitutional Court reminded us (if we needed reminding) that “[p]olitical life in democratic South Africa has seldom been polite, orderly and restrained” but has rather “always been loud, rowdy and fractious”. But, said the court, “[t]hat is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible”.

Such vigorous discussion will often be rude and aggressive and politicians who do not like being insulted should probably get another job. There is no place for the fainthearted in our political discourse.

In its judgment the Constitutional Court found that a text message sent by the Democratic Alliance before the previous election stating that “[t]he Nkandla report shows how Zuma stole your money to build his R246m home….” expressed an opinion that did not contravene the relevant provisions of the Electoral Act.

The judgment did not find that the claim that President Jacob Zuma is a thief was true. It is therefore not clear whether President Zuma would be able successfully to sue for defamation if he is called a thief outside Parliament. (The Constitution protects MPs from being sued for defamatory statements they make inside Parliament or in any of its committees.)

The Speaker was therefore correct to rule that the judgment did not speak directly to whether an MP can call the President a thief in Parliament. (However, to the extent that the Speaker suggested Parliament was not bound by applicable Constitutional Court judgments, she was obviously talking dangerous nonsense.)

What has to be determined is whether the rules of Parliament prohibit an MP from calling the President a thief on the ground that such a statement would be “unparliamentary”.

Neither the rules of the National Assembly nor the standing orders prohibit an MP from making prima facie defamatory statements about any individual who is not a member of the Assembly. The President is not a member of the Assembly (he ceases being a member of the Assembly when elected President) and for the purposes of this discussion is no different from any other ordinary member of the public. Even if there were a rule that prohibited an MP from calling another MP a thief (there is no such general rule), it would not apply to the President.

Section 58 of the Constitution states that Cabinet members, Deputy Ministers and members of the National Assembly have freedom of speech in the Assembly and in its committees, subject to its rules and orders. This means that MP’s can say anything about somebody in Parliament unless constitutionally valid rules or orders of the Assembly regulate or prohibit such speech. The Constitution does not allow the limitation of free expression in Parliament by a “practice”.

There is no rule that prohibits “unparliamentary” speech by an MP and so no rule that prohibits an MP from calling the President (or anyone else – including you and me) a thief. Strangely, a “practice” has developed according to which the Speaker forces MP’s to withdraw “unparliamentary” statements. As there is no fixed definition of what constitutes “unparliamentary” statements, this illegal practice grants the Speaker unfettered discretion to censor any statement by an MP she does not approve of.

But the Constitution does not allow a Speaker to limit the freedom of speech of MPs unless he or she is authorised to do so by the rules or orders of Parliament. A vague “practice” will not do. This means every time the Speaker rules that certain speech by an MP is “unparliamentary” and must be withdrawn, the speaker is unconstitutionally limiting the freedom of speech of MPs as she is invoking a “practice” that has absolutely no legal standing.

Now, the rules of Parliament could be amended in order to add a rule that would allow the Speaker to rule “unparliamentary” statements impermissible. It will depend on the content of the rule (especially whether it was formulated with sufficient precision) whether it would pass constitutional muster. Parliament could also adopt a standing order to this effect. Again, the standing order would need to comply with the Constitution. But none of these options have been followed.

This means there is no legal authority for the Speaker to rule on “unparliamentary” statements of MPs. When she rules speech “unparliamentary” she has the same legal authority to do so than, say, the legal authority I have to order South African troops to invade Lesotho. It’s a dangerous and anti-democratic nonsense inherited from the colonial Parliament. It is beyond me why the MPs of all political parties have thus far gone along with this flagrantly illegal limitation on their rights to free speech.

Now, one argument to counter this view would be that the Speaker retains a general discretion to make up rules and to invent “practices” that limit free speech. Such an argument would probably rely on rule 2, which grants the Speaker the authority to rule on “any eventuality for which these Rules do not provide”.

But this rule is not applicable to limitations on what can and cannot be said in Parliament because the rules of the National Assembly already contain extensive provisions on the regulation of speech in the National Assembly. As the rules already provide for the limitation and regulation of free speech to retain order and decorum in the House, the Speaker is not authorised by rule 2 to make up new rules or to invent new practices to limit free speech merely because the colonial masters in London may have applied a similar “practice” or “rule”.

If the rules were read differently, it would lead to absurd results as it would allow the Speaker to make any rule limiting the freedom of speech of MPs, including a general rule that no opposition MP is allowed to ever say anything in Parliament. As rule 2 does not apply, this means the Speaker cannot invoke the nonsense of “unparliamentary speech” because there is no rule or order that allows her to do so.

How do the actual rules and orders of the National Assembly limit free speech at present and why is it that these existing rules do not usually apply to statements made by MPs about the President (or about any other non-MPs)?

Rule 46 of the National Assembly prohibits MPs from talking aloud during a debate while rule 47 prohibits an MP from interrupting “another member whilst speaking, except to call attention to a point of order or a question of privilege”. Rule 50 further regulates speech by stating that the Speaker “after having called attention to the conduct of a member who persists in irrelevance or repetition of arguments, may direct the member to discontinue his or her speech”.

Rule 61 prohibits any MP (including the Speaker!) from referring to any other MP by his or her first name or names only (which is why MPs often call each other honourable member – something which, I am ashamed to say, often makes me snigger like a naughty schoolgirl).

Rule 63 prohibits an MP from using “offensive or unbecoming language” in a debate. Rule 63 does not refer to the content of the speech but rather to the form the speech takes. Calling somebody a thief or a liar or alleging that a tenderpreneur has cheated the state out of millions of Rand would not be covered by this rule, but calling a person a “little shit” or a “fuckwit” or some such offensive term would obviously contravene rule 63.

Rule 66 also prohibits an MP from reflecting upon the competence or honour of a judge of a superior court, or of the holder of an office (other than a member of the Government) whose removal from such office is dependent upon a decision of the House, except when a substantive motion to that effect is being debated. This rule obviously applies to judges and individuals such as the Public Protector or members of the South African Human Rights Commission, but does not apply to the President or other Cabinet Ministers.

Rule 67 quaintly prohibits MPs from referring to any matter on which a judicial decision is pending. This rule contains the pre-constitutional position regarding the sub judice rule, but this position has been overturned by the Supreme Court of Appeal in the Midi-Television case, so rule 67 may well be unconstitutional. Nevertheless, until it is invalidated it applies, so when Deputy President Ramaphosa refused to comment on his involvement in the signal jamming fiasco he was acting in conformity with the existing rules.

However, there is a standing order made by a former Speaker of the National Assembly, Frene Ginwala, on 17 September 1996, which reads as follows:

A member who wishes to bring any improper conduct on the part of another member to the attention of the House, should do so by way of a separate substantive motion, comprising a clearly formulated and properly substantiated charge and except upon such a substantive motion, members should not be allowed to impute improper motives to other members, or cast personal reflections on the integrity of members, or verbally abuse them in any other way.

First, it can be argued that the motion of no confidence in President Zuma indeed constituted a “substantive motion” about his conduct and therefore covers the debate conducted this week.

But even if this was not correct, the standing order quoted above did not apply to President Zuma. This is because the standing order only applies to MPs (or to the President when he is actually present in the Assembly) – not to non-MPs. Although rule 5 states that when the “President takes his or her seat in the Assembly” the rules also apply to him or her, this week (as is almost always the case when the Assembly sits) the President was not present in the Assembly, which means that the standing order quoted above could not possibly have applied to him.

Thus, as the rules stand, when the President is not in the Assembly, an MP is allowed to say the most scurrilous things about the President during any debate (regardless of whether a substantive motion to this effect had been brought) – as long as this is not done in “offensive or unbecoming” language.

When the President is not in Parliament an MP can call the President a murderer (perhaps alluding to Marikana), a thief (perhaps alluding to Schabir Shaik and/or Nkandla), a liar (perhaps alluding to his answers about Nkandla) or a weakling and lackey (perhaps alluding to the Gupta’s).

As the Constitutional Court pointed out in the case quoted above voters are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint.

When MPs make claims about the President in Parliament ordinary voters would judge such claims accordingly. Unless the President had acted in a way to give credence to the scurrilous claims made in Parliament about him, most voters would dismiss the claims as overblown political rhetoric.

This view accords with the idea that voters (and not politicians) are ultimately in charge and ultimately judge politicians and their parties on voting day. Voters judge whether they have any reason to believe an MP when he or she uses parliamentary privilege to call the President (or anyone else) a thief.

It’s called democracy. Pity the Speaker does not seem to be a fan.

Mike van Graan and AFAI never loved us

Mike van Graan, the Executive Director of the African Arts Institute (AFAI) has sent me the following response to the Blog I wrote last week. He says it will be published on AFAI’s website. I publish his full, rambling, piece below without comment, despite the fact that some of the claims are obviously defamatory. Readers will  make up their own minds about the veracity of  his arguments and factual claims (and about the character and ideology of the person who wrote it).

Don’t touch me on my bigotry

Professor Pierre de Vos is a highly respected commentator on constitutional and legal matters as they relate to our polity, and is an outspoken thought leader on issues of relevance to the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community. It is for this reason that the African Arts Institute (AFAI) invited him to participate in a public forum on Monday 23 February on the topic “Is same-sex love African”?

He subsequently wrote a blog on his site, Constitutionally Speaking, in which he not only shared his general critique of the event, but was particularly critical of AFAI for giving a platform to Iman Ismail Ngqoyiyana, who expressed views that many in the audience found offensive. In his blog titled “Those intolerant of bigotry do not invite bigots to speak” he suggests that the African Arts Institute needs to be “delegitimised” the African Arts Institute for providing a platform for “bigotry”. In doing so, Professor De Vos shows himself to be at best myopic in his interpretation and representation of what occurred that night, playing to his gallery, and at worst, not a little economic with the truth, which raises huge questions about his integrity, and about whether to take seriously anything else he writes in future.

This is a response to his blog, which I have divided into sections below, with my comments under relevant sections.

But first, three introductory points:

  1. AFAI hosts regular public forums on controversial subjects or “hot topics”, ranging from whether artists should be members of political parties; the Cape Town Fringe’s censorship of a play by a “sex pest”; the City of Cape Town’s support for public art installations such as the “Ray Ban spectacles” to the closed casting of the recent Maynardville production of Othello funded by taxpayers. For all of these, we try, as far as possible, to have a range of views on the panel that introduces the topic, after which we invite engagement with the audience. The panel on same-sex love in Africa was no different in form.
  2. AFAI advertises these events on social media, on our website, and through direct emails to our database; who attends depends entirely on the topic, the speakers and the interest of those who receive the information. We do not restrict attendance in any way; nor do we screen attendees before they are allowed to attend or participate in the forum.
  3. At the “same-sex in Africa” forum, three of the four panellists were from the gay community; most of the audience – certainly if the speakers from the audience were a barometer – were gay, or highly sympathetic to our gay community.

The following are paragraphs are from my prepared introductory remarks to the forum (which I referenced, but did not read word-for-word at the beginning):

 Tonight’s forum takes place in the context of the latter area of engagement (AFAI’s interest in cultural policy and theory). Over the last year, we’ve hosted seminars and public forums in Johannesburg and Cape Town under the broad rubric of “Culture and Development”, the banner under which international funding is generally made available to stakeholders in the African creative sector.

Often, some of the themes introduced to us in Africa arise out of contexts in which they may be more applicable than our own, but we embrace them, because of the resources attached to them. So yesterday it was cultural diversity, the day before, the creative industries, today, it’s climate change and the arts, tomorrow it’s intercultural dialogue, etc.

What do these themes mean for us? Are they relevant to us? Do the conditions exist across the continent for these to be embraced in their entirety, or in part?

On the other hand, we often hear about the need to find African solutions for African problems, and in the process, people suffer while we search for such answers. We often hear of the need to interrogate issues from within African cultural paradigms, and this is where the notion of culture and development first arose in the sixties: models of development were introduced to newly independent countries and yet, they failed because they were not rooted in the values, worldviews, belief systems of those who were supposed to benefit from these.

There is much debate about human rights in Africa and whether what may be considered human rights in western democracies where particular cultural values prevail, might have different meanings and expressions in other contexts e.g. the debates around freedom of expression and the rights to private property.

There are also debates about democracy, about whether – given the influence of more traditional forms of governance – African forms of democracy are different to western forms of democracy. In our own country, we often hear the argument that a particular course of action or belief is inconsistent with the culture of a particular community. This is the area in which AFAI works, trying to negotiate, interrogate and understand what is valid and legitimate when it comes to the impact of culture on development, on human rights and on democracy, and on the other hand, what is not.

South Africa’s constitution outlaws discrimination based on a number of factors, including sexual orientation, which has led to South Africa being held up as one of the most progressive societies in the world. Same-sex marriages are now legal as is the adoption of children by same-sex couples.

But this constitutional right is not supported by everyone. Religious and various cultural communities consider this to be inconsistent with their religious beliefs and/or the values, traditions, belief systems – in short – the culture of these communities.

The vast majority of African countries have outlawed same-sex relationships, and have imposed harsh penalties on gay relationships. Many of these countries – and people within these countries (as we know from travelling across and working with colleagues in a number of African countries) – consider same-sex relationships a western import, a western construct, an imposition of an immoral western society, declaring that same-sex relationships are un-African. They claim that there is no tradition of same-sex relationships in Africa, and reject any advocacy around this, to the point of some declining funding from western countries should this be conditional upon them allowing – or at least turning a blind eye to – homosexual relationships.

So, tonight, we’re asking that simple question: in the same way that we’ve asked before – is the Universal Declaration of Human Rights – all its clauses – consistent with African understanding? Of course, there are 54 countries on the continent so that what is “African” is hardly “essentialist” or consistent across the continent, but with so many countries actually having passed laws legislating against same-sex love, the question tonight is “Is same-sex love African or not?” And, depending on how the question is answered, what are the implications?

Constitutionally Speaking

Those intolerant of bigotry do not invite bigots to speak

Feb 25th, 2015 by Pierre De Vos.

One of the favourite mantras of some free speech fundamentalists is that “the cure for bad speech is more speech”. But sometimes it is counter-productive, even wicked, to continue debating an issue when such a debate serves to promote and legitimise beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people. Sometimes the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform.

The professor tilts as [sic] windmills in his opening paragraph, seeking an enemy – “those…who give (‘bad speech’) a platform” where none exists, and so, possibly alienates an ally, or a potential ally, in the process. What we as AFAI were looking for from the debate, and what we expected from someone like De Vos, were intellectually sound arguments, a capacity for dissecting the presentations of those with whom they disagreed, a presentation of research that dismantled the reasoning or beliefs of their opponents. What we got instead is De Vos’ emotional characterisation of the debate as one that legitimised “beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people”, the kind of characterisation that makes it difficult to argue against for fear of being accused of being complicit in such dastardly deeds (as De Vos implies we are).

De Vos naively suggests that “the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform” as if by doing so, one will do away with the beliefs and practices that lead to the rapes and murders of black lesbians for example! A more rational approach – in my view – is at best, to confront and dismantle the beliefs and practices that lead to such violence against the LGBTI community, and, at worst, to seek to form alliances and partnerships with those whose views might be fundamentally different to yours on particular issues, but who agree with you on other fundamentals, like, for example, not criminalising or killing gay people, so that they, in turn, may influence others not to commit such acts of violence against the LGBTI community.

Thirty-eight African countries have laws prohibiting homosexual practices, many of them in the belief that homosexuality is a Western import, a signifier of Western decadence. Iman Ismail Ngqoyiyana himself gave expression to this view, so that it is not only a view held beyond the Limpopo; it is a view held by a religious leader who has influence in his Khayelitsha community.

I would venture that there would be more chance of reducing the number of rapes and murders of lesbians in Khayelitsha by engaging with religious leaders in that community to take a strong stand against such violence, than by dismissing any engagement with them on account of them being “bigots”. By the same token, De Vos would refuse – and encourage others not – to engage with political, religious and social leaders in African countries where homosexuality is criminalised, because – as expressed in his blog – the very act of engaging them is “wicked”, or perpetuates the beliefs that lead to such criminalisation. This way of thinking, I would argue, is the way of the rich and the privileged, those who in fact do not face such violence and criminalisation, but live in their laager of well-resourced pontification, surrounded by fellow pontificators, all reinforcing each other’s ivory tower outrage.

Let’s get this straight. The debate did NOT promote the murder of lesbians; even Imam Ngqoyiyana made this clear. After the panellists each had a chance to present their views on the topic, there was an audience member – one who introduced himself as Ebrahim – who began by saying that he hopes not to offend anyone, and then proceeded to say that the Quran tells the story of Lot, a righteous man, who was the only man saved when God punished the people of a city for their sins, including the sin of sodomy, where those engaged in such acts were crushed.

At this point, one of the panellists objected to what she said was hate speech, an incitement of violence against gay people. In my role as facilitator of the debate, I expressed the view that simply for the audience member to be describing what he understood the Quran to be saying on the subject, was not necessarily the same as advocating it.

When Iman Ngqoyiyana responded to the round of questions, he expressly contradicted Ebrahim, stating that it is not the Quran, but the Bible that calls for the killing of homosexuals and he quoted the relevant chapters and verses in Leviticus. When questioned further about Islam’s attitude to homosexuals, Iman Ngqoyiyana said that three of the four main schools of Islamic law promoted the death penalty for homosexuals, while the fourth did not. South African Muslims – he said – subscribed to the fourth school of thought, and did not advocate death for homosexuals. Local Islamic scholars and leaders believed in the “re-education” of homosexuals.

Thus, for De Vos to suggest that the debate promoted beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people, is, quite simply, false, a figment of his own self-righteous, heroic imagination.

 When I was invited by the African Arts Institute to take part in a panel discussion on “Same sex love in Africa”, I reluctantly agreed. I find it somewhat tedious and politically problematic to be asked to talk about the African continent and its people as if it is a monolithic space inhabited by people who are identical in every way.

De Vos’ imagination continues to haunt him in the above paragraph; no-one asked him to speak about the African continent as if it were a monolithic space. In my introductory comments, I stated quite clearly that Africa is not a homogenous entity, and that there were not only differences between countries and regions, but even within countries. During the discussion, De Vos himself referenced this opening comment in agreement, so to give the impression that he was reluctantly engaging in a debate shaped by the African Arts Institute to imply Africa as a monolith, is disingenuous.

In truth though, 38 African countries have outlawed homosexuality. This is more than two-thirds of the total number of African countries. Should these countries constitute a voting bloc in an African parliament, their two-thirds majority would make this an “African position” in that the majority of African countries have laws criminalising same-sex love. Many African leaders have expressed the view that homosexuality is an import or imposition of the West, a view they further justify when Western countries withhold – or threaten to withhold – development aid against countries that have outlawed homosexuality.

In the last month, I’ve been approached by a young refugee from the Democratic Republic of Congo for advice about publishing his book, Who is African and Proud to be African? In it, he specifically asks the question “Is homosexuality African?” At a recent cultural policy workshop which we hosted for leaders in cultural NGOs in the Eastern Cape, the overwhelming view expressed by particularly the men in the workshop – who identified themselves as Xhosa men – was that homosexuality was not part of their culture.

During the public forum, De Vos took the African Arts Institute to task as in his view, we were starting with the wrong question; that to ask the question – is same-sex love consistent with African culture? – is to perpetuate the marginalisation of gay people in Africa. If there is arrogance, then it is in the dismissal by De Vos of a question and a view that many people subscribe to across the continent!

As AFAI, we work in the realm of cultural policy and theory, seeking answers and perspectives to issues that confront practitioners on the continent, from within African paradigms and conditions as varied as they are. It is in order to deal with the question that we ask it, hoping for learned colleagues to help us grapple with it and present alternatives to the dominant discourses where necessary. The elitist De Vos though, with typical South African arrogance (in relation to the rest of the continent) dismisses the question and concern as “wrong”.

The manner in which “Africa” (as a colonial construct) is deployed in the Western imagination to erase the beauty, vibrancy, individuality, vitality, agency and multiplicity of vastly different individuals living in different parts of our continent is galling and arrogant.

I agree. But what for me is equally galling, arrogant and tiresome is the denialism of a political or class elite that is so eager to dispel “western” constructs or “colonial” impressions of Africa or to prove their African credentials, that in doing so, they ignore or shy away from the poverty and oppression of many of the continent’s people. There is a reason why most African countries find themselves in the “Low Human Development” category of the UNDP’s Human Development Index that measures life expectancy, education levels and quality of life. There are reasons why, despite huge GDP growth for many African countries over the last 15-20 years, most African people continue to live below the poverty line eking out an existence in the informal sector, with sub-Saharan life expectancy at unacceptable low of 55 years. Africa is not a continent of binary oppositions, of “Africa Rising” or “Africa: The Dark/Hopeless/Bottomless Continent”; it has elements of both, simultaneously and much more in between, and beyond either of these poles.

What we are facing and challenging though with regard to this particular issue, is not something that has to do with a colonial or western imagination (this is a complete red herring in De Vos’ blog); it has to do with what Africans themselves are saying! And what they are saying is that homosexuality is western, it is an imposition of the West on Africa, and are rejecting it as not part of “African culture”. So it is with great irony that De Vos holds forth about the “beauty” and “agency” of Africa, but wishes – with typical Western arrogance – to deny Africans their agency in dismissing homosexuality as un-African.

This habit of thinking and speaking of “Africa” as a gigantic, blank space inhabited by smiling people patiently waiting under acacia trees for Madonna or Brangelina to adopt their children while lions roar prettily in the distance is perfectly captured by the mocking title of the magnificent website called “Africa is a Country”. I nevertheless agreed to take part in the discussion at the Artscape Theatre in Cape Town because I believe it is important to engage critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs and dogmas about the sexuality of the previously colonised and the marginalised and oppressed in society. I do not, in principle, have a problem to talk about the harms caused by religious dogma and how we can begin to address the corrosive effects of this dogma on people living in different societies, cultures, and in different towns, cities and countries.

If only De Vos had actually “engaged critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs…” and if only he had talked about how “we can begin to address the corrosive effectives of this (religious) dogma”…this would have been an actual, real and meaningful contribution to the public forum. Instead, all we got was a “woe-is-me” reaction to some of what he thought the Imam as saying, and this, after he had decided that the topical question on the night was not the right question!

A good place to start is to recognise that the colonial conquest of the African continent facilitated the spread of Christianity and Islam throughout the continent. If you are thus the kind of person who likes to show your disproval of certain beliefs or practices that you do not know or that you fear by claiming that they are “un-African” you might well need to start by conceding that Christianity and Islam are “un-African”. The colonisers (animated by racist fears) invoked beliefs and dogmas borrowed from these religions to stigmatise as dangerous and degenerate sexuality and desire that did not conform to problematic, idealised, Western, norms in order to justify the policing of sex and desire through the enforcement of Western style criminal law and through the enforcement of religious dogma. Reactions to Brett Murray’s The Spear painting reminded us again of this shameful history and the problematic ways in which colonial conquest stigmatised sexuality and desire (and pathologised black bodies more generally) in many parts of our continent.

There is no doubt that Christianity and Islam have contributed substantially to views and beliefs about sexuality, and continue to do so, with the anti-gay laws in Uganda, for example, being sponsored by American churches. But many Africans are not necessarily responding to homosexuality in terms of their religious beliefs or identity; some are doing it as “Africans” as “Xhosa men” for example.

Islam has been part of Africa for literally hundreds of years, as has Christianity, so that these ARE now integral to – some – African cultures (cultures change after all, and integrate dominant influences). Football, hardly African in origin, is now an integral part of African culture. It is thus erroneous – but, more importantly, of little persuasive value – to dismiss proponents of the idea that “homosexuality is un-African” as having “borrowed” these beliefs from un-African religions.

De Vos’ reference to Brett Murray’s painting, The Spear, which depicted President Zuma in a Lenin-like pose with his genitals exposed, is interesting in the context of this discussion. There were certainly those who dismissed the painting as “racist” because in their view, the white Murray was continuing “the shameful history and problematic ways in which colonial conquest stigmatised sexuality and desire…”. But others appropriated a “cultural” response to the painting stating that it was against Zulu culture to depict the genitals of an elder, and that the painting was deeply respectful of Zulu culture. Ayanda Mbulu has also depicted Zuma with his genitals exposed, and yet, there was no outcry against this painting raising the question about whether culture is used from time to time as means of silencing criticism? The male organ has long been used as a symbol of power, of rape and pillage, and within a few months of the controversy around The Spear, Nkandla began to appear in the headlines and has continued to do so as an example of the rape and pillage of the public purse by those in power.

While the Constitution guarantees freedom of artistic expression and thus would protect Murray’s right to paint and exhibit The Spear as part of his Hail to the Thief 2 exhibition mocking the ANC’s selling out of its liberation ideals, there were many who felt culturally offended, that the painting was un-African, that it was inconsistent with African values, beliefs and traditions. It is within these countervailing forces – Constitutional ideals on the one hand and culture on the other – that debates, contestation, arguments will and should occur, as part of social progress.

Similarly, while the Constitution outlaws discrimination on the basis of sexual orientation, there are many who believe otherwise, whether for particularly cultural reasons or for religious reasons (I would not separate the two as religious belief is fundamental to cultural identity). And debates, arguments and contestation in this regard must necessarily occur as part of our social progress.

De Vos, though, while claiming to believe in such dialogue and contestation, in reality does not, as exhibited by the manner of his participation in the public forum and in his subsequent blog!

 In the original email I received from the African Arts Institute I was told the discussion was aimed at gaining “a deeper understanding of perspectives on same sex love in relation to culture, tradition, identity politics and human rights”.

Exactly right! In a further email sent to all the speakers on the Friday three days before the debate, my colleague wrote “I would also like to re-iterate the primary question we would like to tackle in the debate – is same-sex love (or homosexual love) African or not? We are framing the question as such in order to elucidate the ways in which expressions of sexuality are understood from a cultural perspective. The question begs more questions – what does it mean to be African, how is one’s African-ness defined, what is African culture and how is it changing? The debate is aimed not to establish moral judgment on sexual preference and expression, but rather to explore its perceived and real intersections with culture, particularly within the African (and South African) context.”

This clearly explained where we were coming from as the African Arts Institute, to all the speakers.

I assumed the discussion would occur in a relatively safe space in which my basic humanity, my right to exist and flourish as a human being and my right not to be killed would not be treated as subjects open to legitimate discussion and debate. On Monday afternoon I received a call from one of the organisers and for the first time was alerted to the fact that I would share the podium not only with an artist and with a fellow academic but also with an Imam. The organiser told me that they foresaw sharp conflict as the Imam would argue that same sex love was un-African and against Islam. Although irritated by what I perceived to be a dishonest ambush, I nevertheless agreed to continue with my participation out of politeness and out of respect for those who would go to the trouble of attending the event.

Again, De Vos characterises what happened at the debate as if there was a general call for gays to be murdered. This is COMPLETELY FALSE!! As pointed out earlier, a member of the audience – we do not screen our audiences and ask them to state their beliefs prior to allowing them entry – expressed what he believed the Quran said about homosexuals having to be punished by death, but Iman Ismail Ngqoyiyana clearly and unambiguously disabused the speaker of that notion. De Vos seeks emotional sympathy from his gallery to paint the organisers and one of the panellists as advocates of the murder of gays (he believes that the beliefs of the Imam lead to the killings of gays and that AFAI is complicit by allowing him a platform to express his views), but he is being utterly dishonest in that the Imam did NOT at any stage call for or condone physical violence against gay people, so that we as AFAI certainly did not provide him with a platform to do so.

De Vos complains that he felt ambushed by being phoned beforehand to forewarn him that one of the panellists would probably be taking a position that same-sex love is un-African and against Islam. Imagine if we had not alerted De Vos to this; then he would really have had a reason to feel “ambushed!” By alerting him, he had the opportunity to withdraw, but he chose not to “out of politeness” and “out of respect for those who were to attend”. Out of politeness, my colleague forewarned him so that he could prepare accordingly. One would have hoped that thoughtleaders and activists in this sector would have the arguments on hand to deal with the expected views of the Imam, considering that these views are hardly new. It would hardly have been a “debate” if the three speakers were all from the gay community, and, in accordance with our intentions as clearly outlined above, it made sense to have someone present as clearly as possible a view that supported the notion that “homosexuality was un-African” and that others would offer counterviews. Otherwise, what would be debated on that subject? At the same time, we informed Imam Nqgoyiyana that indeed, there would be gay people on the panel, as well as in the audience.

I assumed that Mike van Graan, who chaired the panel, would not allow the event to degenerate and would create and defend a safe space in which rational and respectful discussion would remain possible. This did not happen. The Imam spoke about diseased fishes (what this had to do with the topic never became clear), quoted disapproving passages from the Koran and (as is often the case with men of the cloth) generally displayed a morbid obsession with the mechanics of sex.

I would hardly be the one to defend Imam Ngqoyiyana’s views, but it is ironic that De Vos questions what he had to say in reference to the topic when De Vos himself refused to discuss the topic, reprimanding AFAI for even hosting a debate with such a topic. But what goes to the very integrity and intellectual honesty of De Vos is his characterisation of the debate as one that “degenerated” and was not a “safe space” for “rational and respectful discussion”.

First, it is necessary to point out that the overwhelming majority of the audience was gay, or sympathetic to the gay community, certainly with regard to the questions posed and the responses to Imam Ngqoyiyana. Second, while the three gay speakers presented their views, there was no heckling, no commentary, no laughter or shaking of heads from those who might have disagreed with these presentations. This minority listened with respectful silence. But, while Iman Ngqoyiyana spoke, there were many vocal, disapproving responses from the audience. I ended my introduction to the debate by stating “Finally, this is an understandably heated subject, but I would like to appeal to all of us to seek to engage in the discussion with as much respect for each other as possible”.

The “rational and respectful” space was undermined by audience members vocally expressing their opposition to the Imam’s views while he was articulating them. It started to “degenerate” when a panelist expressed the view that Ebrahim (referred to earlier) had engaged in hate speech. As pointed out earlier, the Imam expressly “corrected” Ebrahim’s understanding of the Quran. The “rational and respectful space” was further undermined by at least one audience member – not a supporter of the Imam – interrupting me as the chairperson.

It is extremely ironic that De Vos characterizes the debate and forum as an unsafe, disrespectful and rational space, when in fact, it was the Imam who read his prepared speech to much vocal interjection, and when it was De Vos’ supporters who were primarily responsible for disrespectful engagement!

It is also extremely ironic that we had to convince Imam Ngqoyiyana not to withdraw from the panel after he had confirmed, as he was concerned that his would be a minority and unpopular view, and that he would come in for much stick. We assured him that we had had tense discussions around highly controversial subjects in the past. It was important for the debate, and for the learnings that would hopefully flow from the debate, that he participated. De Vos gives the impression that it was a forum in which the gay people present were under attack, and that I did nothing to protect them. The truth is that it was the minority view of the Imam and his handful of supporters that was under attack mainly, and it was my duty as chairperson to protect the Imam – whatever his views and however different they might have been to mine – and allow him the space both to articulate his position and to respond to questions without being interrupted or howled at.

A questioner stated as fact that Islam required homosexuals to be stoned to death and asked whether this was indeed what was required of Moslems in South Africa. The Imam said that this was indeed the majority view but that most South African Moslems would follow the minority view that holds that homosexuals should be re-educated to get us to turn away from our “perverted” practices. At no point did the Imam explicitly condemn (as outrageous and criminal) the idea that men and women who engage in same sex sexual practices should be stoned to death. Instead, he suggested that there were two legitimate schools of thought (one in favour of murdering homosexuals, the other not) but, when pressed he did concede reluctantly that he belonged to the more “moderate” school of thought and do not personally endorse murder.

Yet again, De Vos – whose views are held in high regard by many – brings his integrity and intellectual honesty into question. As explained earlier, the Imam explicitly corrected the audience member, Ebrahim, specifically stating that the Quran – unlike the Bible – does not call for homosexuals to be put to death. He explained that there were four schools of Islamic jurisprudence, three of which do indeed believe that homosexuality is punishable by death. South Africa’s Muslim community he said, subscribed to the fourth school of Islamic jurisprudence, that homosexuals should not be put to death, but that they be re-educated. De Vos describes the Imam’s concession in this regard as “reluctant”; I do not remember it as such, but this is a description that suits De Vos’ caricaturing and demonization of the Imam.

In contrast to De Vos’ view, a young man in the audience who described himself as gay, after the Imam had stated quite clearly that South African Muslims do not subscribe to the death penalty for homosexuals, spoke half to the audience, saying that often in these kinds of discussions, people talk past each other, not really listening to each other, being set in what they believed. Yet, for him, the fact that the Imam had stated that Muslims in South Africa do not support the murder of homosexuals, should be a starting point for engaging with the Imam and the Muslim community in South Africa, as possible allies in the fight against the violence committed against gay women in particular, but the gay community more broadly. This entirely reasonable and rational approach is clearly not one shared by De Vos who prefers the emotional demonization of the Imam (even for sins he did not commit) and of AFAI who provided him with a platform to commit the sins he did not actually commit.

(As an aside, it is strange that there is not more outrage in society and from the state      about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass? Is it because we have not entirely rejected the notion prevalent in European nations during the pre-Enlightenment theocratic era that religious rules trump the ordinary laws of the land?)

As an aside, why does De Vos persist in claiming that the doctrine espoused by Imam Ngqoyiyana endorses the murder of fellow human beings, when he specifically said that the Quran does not promote the stoning of homosexuals, and that the South African Muslim leadership and community do NOT endorse the murder of fellow human beings who are gay? De Vos is being utterly dishonest and misleading in this regard, which is hardly what one would expect from an academic, a thoughtful intellectual and an opinion maker.

When a fellow panellist as well as other attendees objected to this line of discussion, they were told that they were being intolerant of the views of others who happened to disagree with them.

That there was this line of discussion – that gays should be murdered – was simply not a line of discussion, but De Vos, clearly with his own or someone else’s axe to grind – tries to give the impression that I as chairperson, and by extension AFAI, expected – and demanded – of the audience that they tolerate the view that gays should be murdered. This is a blatant and self-serving untruth! At one stage, given the amount of heckling, I did make a general request for greater tolerance of views as per my introduction, but I specifically labelled as intolerant the audience member who interrupted me on more than one occasion.

The Imam and one of his supporters even claimed to feel victimised because members of the audience expressed their distaste of his bigotry and his spectacular lack of basic decency and humanity. (This is not surprising as bullies often claim to be victims when they are called out on their intimidation and persecution of others.)

Again, De Vos is blind to the irony of his views. He rejects the view of one of the Imam’s supporters that she felt victimised; so it’s absolutely fine for him and his supporters to express their disgust at the Imam and claim all kinds of victimisation, but not for someone who held a different views to theirs, to do the same. Clearly, bigotry is not peculiar to Imams nor to religious fanatics or believers; the tensions within the recent gay pride march attest to that. But while – in De Vos’ view, the Imam displayed a “spectacular lack of basic decency and humanity” – some of his supporters displayed exactly the same! It is too often the case that those who most demand tolerance and respect (often for highly legitimate reasons) are themselves incredibly intolerant and disrespectful. By no means all, but certainly quite a number in the audience that night were guilty of “a lack of decency and humanity” and I hardly get the impression that De Vos himself has a high regards for the Imam as “human”.

 After the event I felt tarnished and degraded for being forced to defend my right to exist in South Africa without fearing that I will be murdered in the name of God. It is unthinkable that in 2015 a body like the African Arts Institute would host a panel discussion which raised the question of whether men and women of different races who engage in sex should be stoned to death or whether they should rather be re-educated. It is also unthinkable that the African Arts Institute would invite Dan Roodt to take part in a panel discussion on whether black people are inherently intellectually and morally inferior to white people.

The professor clearly participated in a different panel discussion to the one we hosted, and to which we invited him. It has been stated clearly what the panel question was, why we were asking the question and what we hoped to get out of it. As for the Dan Roodt parallel, first, Dan Roodt’s views are that of an extreme minority, they are hardly mainstream. The views of Imam Nqgoyiyana on the other hand, are held by many people across the continent. It is precisely for that reason that these views need to be engaged in rational discussion, as difficult as it may be! Secondly, if for some reason, we were to invite Dan Roodt onto a panel on the subject mentioned by the professor, we have no doubt that they while they may be offended by the question, the people we would ask to debate the matter, would have the intellectual ability, the knowledge and personal confidence and security to be able to engage and expose Roodt’s beliefs. This, unfortunately, was not the case with De Vos on this particular panel.

Whether such speech constitutes hate speech or not (and as I have argued many times before, I am not convinced that hurtful speech is best countered by using hate speech legislation), it is not the kind of speech that belongs in a respected (supposedly progressive) public space. This is so because the speech has no value. It does not enlighten. It does not help us to think critically about how better to live in the world. It does not educate or allow us to understand how to deal with oppression and bigotry. It merely reinforces and perpetuates the most narrow-minded, and hateful types of fear mongering and persecution. It provides a platform for speech that directly threatens the well-being and survival of a vulnerable section of South African society.

The professor completely astounds me! While I am in no way defending Imam Ngqoyiyana’s presentation or his answers to questions, the purpose of the evening was not simply to allow Imam Ngqoyiyana a platform “for speech that directly threatens the well-being and survival of a vulnerable section of South African society”. He was not alone on the platform, and his views were by no means the majority view in the audience. The professor and his colleagues could have engaged Imam Ngyoyiyana’s views rather than simply assume a woe-is-us posture. In De Vos’ view, the Imam’s “speech has no value, because it does not enlighten, nor help us to think critically about how better to live in the world”. To be frank, neither did the presentation or the input of De Vos enlighten or help us to think critically about living better in the world. As stated before, precisely because Imam Ngqoyiyana has influence within the Khayelitsha community where black lesbians may be threatened, is this not sufficient reason to engage with him, to seek areas of alliance in order to recruit him in the fight against violent assaults on black lesbians? The Imam was sharing his views in a theatre in the city centre, with a relatively educated, middle class, mainly gay audience, hardly the audience that would “threaten the well-being and survival” of the gay community! Here was an opportunity for people like De Vos to engage the Imam, but De Vos chooses to ridicule him, to caricature his views, to accuse him of statements that he simply did not make. It would not surprise me if – based on his experience and how he was treated as a human being – the Imam is even more convinced of his position, or at least is not any more sympathetic to the gay community. If this is the case, then the gay community has lost a potential ally in Khayelitsha.

By hosting such an event, an organisation such as the African Arts Institute further legitimises widely held hateful views that create the environment in which many people believe it is justified to assault, rape and murder those of us who choose to love members of the same sex. It has potentially deadly consequences. To say that these views should not be given a platform by the African Arts Institute is not to be intolerant of free speech. It is to be intolerant of hate, bigotry and dehumanising language used by those who claim to speak on behalf of a cruel and vengeful God. In any case, it is not speech on behalf of any God I recognise. There is nothing wrong with being intolerant of the type of hatred and bigotry that may well have real and fatal consequences for some of our brothers and sisters, mothers and fathers and sons and daughters who happen to love differently from the colonial-cum-religiously imposed norm. It is an entirely different question whether the law should prohibit such speech and allow for the prosecution and imprisonment of those who engage in such hateful bigotry. To support the legal prohibition of certain types of speech would, to some extent, be intolerant of free speech. Except for the most extreme forms of hate speech, I am not in favour of such regulation because I am not sure it would achieve much and I fear regulation could be abused to limit speech which may well turn out to be of value.

De Vos – the professor – is clearly confused. On the one hand, he wonders why “there is not more outrage in society and from the state about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass?” On the other hand – “except for the most extreme forms of hate speech” – he is not in favour of regulation that prohibits certain types of speech. As I’ve tried to show repeatedly, firstly, Imam Nqgoyina did not articulate a doctrine that “endorses the murder of fellow human beings”; De Vos continues to mislead his readers with such dishonesty! But if he did, then this would certainly constitute hate speech, and the state would be obliged to regulate against such speech! If De Vos as a constitutional lawyer and legal expert believes that Imam Nqgoyiyana really did and does advocate a theological teaching that endorses the murder of gay human beings, then De Vos MUST surely advocate strongly for the state to ban such hate speech as it is intolerable to have such agitation towards murder by anyone. If De Vos does not do this, then he is as complicit in continuing to provide a platform for Imam Nqgoyiyana to spread his “hateful bigotry” as he claims the African Arts Institute was in providing the Imam with a platform. If he does not campaign for Imam Nqgoyiyana to be charged with hate speech, then De Vos is a cowardly hypocrite!

But De Vos clearly lives in a different world to the real one in which we as an institution have to engage. When we run workshops for young leaders from 13 African countries, and not a few of them hold views similar to that of the Imam, what are we to do? Ban them and put them on the next flight back to their respective countries? When young Xhosa men at a cultural policy workshop say that homosexuality is not part of their culture and another declares that same-sex love is not biblical, should we continue the workshop only with those whose views are not bigoted towards gays? If hundreds, perhaps thousands of imams and pastors are preaching that homosexuality is wrong, influencing millions of people in the process, do we ignore such bigoted preachers, because to engage them is to legitimise their views and beliefs? If such preachers genuinely care for the poor in their communities and take strong stands against xenophobia, are we to reject any relationships with them because they have reactionary views on same-sex love?   It is quite possible to be intolerant of hate, dehumanising speech and bigotry, and because of that, engage with those who may be guilty of these, in order to change them, and in so doing, to lessen the impact they have on those over whom they have influence. For De Vos in his privileged ivory tower, he may choose who to work with, and whom not to, who to listen and speak to, and whom not to; in the real world, life is more complex, requiring more nuanced engagement than the good-bad binaries of De Vos’ world.

However, who is allowed to speak on a specific platform speaks volumes about the ideology and political commitments of those who control the platform. When those who make such decisions believe it is entirely appropriate to host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated, it says just as much about their own lack of humanity and their moral failure as human beings and political actors than about those they invited onto the platform to spread their hatred. It is for that reason that I will not, under present conditions, accept an invitation to appear at an event organised by the African Arts Institute.

And with that, the dramatic, heroic professor ends with a flourish, tilting even more strongly at the offending and imaginary windmills, trying desperately not to fall off his horse. Given his lack of intellectual honesty and his complete inability to offer anything new that could inform our work as an Institute working in the highly contested and nuanced area of culture, it is highly unlikely that we will be inviting the professor to a forum that requires intellectual engagement. Just for the record – again – we, the African Arts Institute, did not host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated as alleged by the professor; we hosted a debate on the belief by a significant number of ordinary and influential people on the African continent that same-sex love is not consistent with African culture. We were hoping for research and insights that would debunk this, or for speakers to confront the belief head on and declare what conditions need to be created for same-sex love to be accepted as part of African culture, or at least for arguments that would undermine the key cultural/religious premises of this belief. But that is not what we got.

For the professor then to go on and say in his over-the-top, dramatic terms that the debate – which he thought we had, or which he had in his mind but which is not the debate we had – reflects poorly on our humanity and morality both as human beings and as political players, says a lot about him, and his (own or vicarious) axe that he has to grind. The truth is that among the staff of the African Arts Institute who were part of organising this debate, there are vastly diverse views on the subject. That De Vos uses his intellectually dishonest view about what took place that night to judge and call into question the morality and political commitment of my colleagues and myself, again reflect poorly on him as a human being, an “intellectual” and a political commentator. Fortunately, our credibility – just like our vision and mission – is not dependent on the fallacious, narrow, self-serving views of a supposedly learned professor. I have no doubt that we will lose some friends and supporters as a result of the professor’s blog, and from this response to it, but I am absolutely convinced that the very premise of his blog, and his characterisation of the debate, is dishonest and lacking in moral and intellectual integrity, as I’m sure the video evidence of the debate will attest to.

As far as the African Arts Institute is concerned, we will continue to interrogate this theme as it is of deep relevance to our work in the area of culture, development, human rights and democracy. Anyone who would like to contribute to the growth of theory and arguments around the theme of same-sex love in Africa, and its relevance – or not – to development and human rights, are more than welcome to do so. Our contact details are on our website www.afai.org.za

Mike van Graan

Those intolerant of bigotry do not invite bigots to speak

One of the favourite mantras of some free speech fundamentalists is that “the cure for bad speech is more speech”. But sometimes it is counter-productive, even wicked, to continue debating an issue when such a debate serves to promote and legitimise beliefs and practices that lead to the assault, rape and murder of marginalised and vulnerable people. Sometimes the only cure for bad speech is to isolate and delegitimise those who engage in such speech or who give it a platform.

When I was invited by the African Arts Institute to take part in a panel discussion on “Same sex love in Africa”, I reluctantly agreed. I find it somewhat tedious and politically problematic to be asked to talk about the African continent and its people as if it is a monolithic space inhabited by people who are identical in every way.

The manner in which “Africa” (as a colonial construct) is deployed in the Western imagination to erase the beauty, vibrancy, individuality, vitality, agency and multiplicity of vastly different individuals living in different parts of our continent is galling and arrogant.

(This habit of thinking and speaking of “Africa” as a gigantic, blank space inhabited by smiling people patiently waiting under acacia trees for Madonna or Brangelina to adopt their children while lions roar prettily in the distance is perfectly captured by the mocking title of the magnificent website called “Africa is a Country”.)

I nevertheless agreed to take part in the discussion at the Artscape Theatre in Cape Town because I believe it is important to engage critically with how we think about same sex love and how we deal with hateful but deeply entrenched beliefs and dogmas about the sexuality of the previously colonised and the marginalised and oppressed in society.

I do not, in principle, have a problem to talk about the harms caused by religious dogma and how we can begin to address the corrosive effects of this dogma on people living in different societies, cultures, and in different towns, cities and countries.

A good place to start is to recognise that the colonial conquest of the African continent facilitated the spread of Christianity and Islam throughout the continent.

If you are thus the kind of person who likes to show your disproval of certain beliefs or practices that you do not know or that you fear by claiming that they are “un-African” you might well need to start by conceding that Christianity and Islam are “un-African”.

The colonisers (animated by racist fears) invoked beliefs and dogmas borrowed from these religions to stigmatise as dangerous and degenerate sexuality and desire that did not conform to problematic, idealised, Western, norms in order to justify the policing of sex and desire through the enforcement of Western style criminal law and through the enforcement of religious dogma.

Reactions to Brett Murray’s The Spear painting reminded us again of this shameful history and the problematic ways in which colonial conquest stigmatised sexuality and desire (and pathologised black bodies more generally) in many parts of our continent.

In the original email I received from the African Arts Institute I was told the discussion was aimed at gaining “a deeper understanding of perspectives on same sex love in relation to culture, tradition, identity politics and human rights”.

I assumed the discussion would occur in a relatively safe space in which my basic humanity, my right to exist and flourish as a human being and my right not to be killed would not be treated as subjects open to legitimate discussion and debate.

On Monday afternoon I received a call from one of the organisers and for the first time was alerted to the fact that I would share the podium not only with an artist and with a fellow academic but also with an Imam. The organiser told me that they foresaw sharp conflict as the Imam would argue that same sex love was un-African and against Islam.

Although irritated by what I perceived to be a dishonest ambush, I nevertheless agreed to continue with my participation out of politeness and out of respect for those who would go to the trouble of attending the event. I assumed that Mike van Graan, who chaired the panel, would not allow the event to degenerate and would create and defend a safe space in which rational and respectful discussion would remain possible.

This did not happen.

The Imam spoke about diseased fishes (what this had to do with the topic never became clear), quoted disapproving passages from the Koran and (as is often the case with men of the cloth) generally displayed a morbid obsession with the mechanics of sex.

A questioner stated as fact that Islam required homosexuals to be stoned to death and asked whether this was indeed what was required of Moslems in South Africa. The Imam said that this was indeed the majority view but that most South African Moslems would follow the minority view that holds that homosexuals should be re-educated to get us to turn away from our “perverted” practices.

At no point did the Imam explicitly condemn (as outrageous and criminal) the idea that men and women who engage in same sex sexual practices should be stoned to death. Instead, he suggested that there were two legitimate schools of thought (one in favour of murdering homosexuals, the other not) but, when pressed he did concede reluctantly that he belonged to the more “moderate” school of thought and do not personally endorse murder.

(As an aside, it is strange that there is not more outrage in society and from the state about religious teachings that endorse the murder of fellow human beings. Why do those who espouse criminality in the name of religious doctrine so often get a free pass? Is it because we have not entirely rejected the notion prevalent in European nations during the pre-Enlightenment theocratic era that religious rules trump the ordinary laws of the land?)

When a fellow panellist as well as other attendees objected to this line of discussion, they were told that they were being intolerant of the views of others who happened to disagree with them.

The Imam and one of his supporters even claimed to feel victimised because members of the audience expressed their distaste of his bigotry and his spectacular lack of basic decency and humanity. (This is not surprising as bullies often claim to be victims when they are called out on their intimidation and persecution of others.)

After the event I felt tarnished and degraded for being forced to defend my right to exist in South Africa without fearing that I will be murdered in the name of God.

It is unthinkable that in 2015 a body like the African Arts Institute would host a panel discussion which raised the question of whether men and women of different races who engage in sex should be stoned to death or whether they should rather be re-educated.

It is also unthinkable that the African Arts Institute would invite Dan Roodt to take part in a panel discussion on whether black people are inherently intellectually and morally inferior to white people.

Whether such speech constitutes hate speech or not (and as I have argued many times before, I am not convinced that hurtful speech is best countered by using hate speech legislation), it is not the kind of speech that belongs in a respected (supposedly progressive) public space.

This is so because the speech has no value. It does not enlighten. It does not help us to think critically about how better to live in the world. It does not educate or allow us to understand how to deal with oppression and bigotry.

It merely reinforces and perpetuates the most narrow-minded, and hateful types of fear mongering and persecution. It provides a platform for speech that directly threatens the well-being and survival of a vulnerable section of South African society.

By hosting such an event, an organisation such as the African Arts Institute further legitimises widely held hateful views that create the environment in which many people believe it is justified to assault, rape and murder those of us who choose to love members of the same sex.

It has potentially deadly consequences.

To say that these views should not be given a platform by the African Arts Institute is not to be intolerant of free speech. It is to be intolerant of hate, bigotry and dehumanising language used by those who claim to speak on behalf of a cruel and vengeful God. In any case, it is not speech on behalf of any God I recognise.

There is nothing wrong with being intolerant of the type of hatred and bigotry that may well have real and fatal consequences for some of our brothers and sisters, mothers and fathers and sons and daughters who happen to love differently from the colonial-cum-religiously imposed norm.

It is an entirely different question whether the law should prohibit such speech and allow for the prosecution and imprisonment of those who engage in such hateful bigotry. To support the legal prohibition of certain types of speech would, to some extent, be intolerant of free speech.

Except for the most extreme forms of hate speech, I am not in favour of such regulation because I am not sure it would achieve much and I fear regulation could be abused to limit speech which may well turn out to be of value.

However, who is allowed to speak on a specific platform speaks volumes about the ideology and political commitments of those who control the platform. When those who make such decisions believe it is entirely appropriate to host a discussion on whether gay men and lesbians are fully human and whether they should be murdered or “merely” re-educated, it says just as much about their own lack of humanity and their moral failure as human beings and political actors than about those they invited onto the platform to spread their hatred.

It is for that reason that I will not, under present conditions, accept an invitation  to appear at an event organised by the African Arts Institute.

SONA and the EFF – What is the Speaker authorised to do?

The State of the Nation Address (SONA) – usually no more than a dry, uninspiring and pompous event showcasing the wealth, power and tawdry glamour of South African political elites – has this year taken on a sharply different meaning. This is due to vague threats by the Economic Freedom Fighters (EFF) to disrupt the event. Can the Speaker prevent EFF MP’s from carrying out their threat? If so, what legal basis is there for preventing EFF MP’s from asking the President questions he had failed to answer when he last appeared in Parliament?

Screenshot 2015-02-01 12.32.10

It is unclear why so much attention (and money) is lavished on the President’s State of the Nation Address (SONA) every year. Speeches delivered by politicians seldom have a direct impact on the lives of voters. Speeches do not put food on the table of the hungry or provide shelter from the elements for the homeless.

Perhaps politicians, media elites and the punditocracy pretend that such speeches really matter more than they actually do to bolster their own sense of (self)-importance. They can tell the rest of us that only they have the tools to identify the strengths and weaknesses of the speech and know how the speech will affect our lives.

Although SONA will almost certainly have no effect on the quality of governance in South Africa, we are asked to pretend that it has the potential to change our lives dramatically. I will prefer not to have to pretend that this is true.

Not that the antics of the EFF will have any effect on the quality of our lives either. At most it will provide some bread and circus to amuse an inquisitive public hungry for some entertainment. That is, if Eskom manages to keep the lights on, of course.

But what happens in the joint sitting of Parliament on Thursday will arguably raise significant constitutional questions. Does the Speaker have untrammelled power to make up rules as she goes along? Can the constitutional right of MP’s to freedom of expression in Parliament be limited and if so, can it be done via arbitrary rulings of the Speaker?

In Speaker of the National Assembly v De Lille the Supreme Court of Appeal (SCA) gave some indication that in a Rule of Law based system like ours, the actions of the Speaker have to be guided by legislation and the rules of Parliament. If legislation and the rules of Parliament do not explicitly authorise the Speaker to limit MP’s right to freedom of expression, conventions and habits cannot do so.

The SCA found that the threat that a member of the National Assembly may be suspended for something said in the Assembly inhibits freedom of expression in the Assembly and must therefore adversely affect the guarantee of free expression. Legal rules must therefore be interpreted to detract as little as possible from this right to free expression enjoyed by MP’s in Parliament.

The Constitution does authorise the adoption of national legislation which will itself clearly and specifically articulate the “privileges and the immunities” of MP’s. The question is whether the legislation or rules clearly and specifically authorise the Speaker to prevent MP’s from asking questions or raising points of order when the President delivers the State of the Nation Address.

Section 7 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act prohibits a person from improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions. It also prohibits a person from creating or taking part in any disturbance within the precinct of Parliament while it is meeting.

If it were assumed that the definition of “a person” includes an MP and is not restricted to non-MP’s (something that is far from clear), section 7 would thus prohibit an MP from disrupting Parliamentary processes. An MP would be disrupting a Parliamentary process if he or she causes such a disturbance or disruption in a manner not authorised by the rules of Parliament.

If an MP swears in Parliament, assaults another MP, sings songs in the chamber, reflects on the competence or honour of a judge during a debate or continuously interrupts the Speaker and refuses to follow her lawful orders, he or she would be in breach of the rules and the Speaker would have every right to order the MP to leave the House.

But what would happen if an MP raises a point of order or attempts to ask the President a question when the President rises to deliver the State of the Nation Address on Thursday?

In terms of Joint Rule 13 an MP will not have a right to make a speech during a joint sitting of Parliament unless invited to do so by the presiding officer or unless having obtained the permission of the Speaker and the Chairperson of the Council before the meeting.

But what about an MP not wishing to make a speech, but wishing to raise a point of order or ask a question instead? The joint rules of Parliament do allow MP’s to raise a point of order during a joint sitting as Joint Rule 14U states that: “A member may speak [during a joint session such as SONA] (a)  when called upon to do so by the presiding officer; or (b) to a point of order.”

Joint Rule 14L, which states that at a Joint Sitting a member “may only speak from the podium, except to raise a point of order or a question of privilege” or in other circumstances not relevant here, confirms the right of MP’s to raise points of order.

This means the Joint Rules do not allow MP’s to ask questions of the President when he rises to deliver his State of the Nation Address. However, at the same time the Joint Rules do clearly allow MP’s to raise points of order when the President delivers his State of the Nation Address addresses to a Joint Sitting of Parliament.

In fact Joint Rule 14S requires that when such a point of order is raised the person delivering the speech (in this instance it would be the President) must go back to his or her seat. After the point of order has been stated to the presiding officer by the member raising it, the presiding officer must then give his or her ruling or decision thereon either forthwith or subsequently.

Now, it is argued that a convention has been established over the years that MP’s do not raise points of order when the President delivers his State of the Nation Address.

However, Joint Rule 4 is very clear that such a practice cannot extinguish the right of MP’s to raise points of order at a joint sitting. The Rule states unequivocally: “No convention or rule of practice limits or inhibits any provision of the Joint Rules.”

In short, EFF MP’s will be within their rights to raise points of order during SONA. However, they will not be authorised to pose questions to the President.

But is it possible to argue that the Speaker retains a residual power to make rulings about the conduct of MP’s, regardless of whether the conduct is authorised by the rules of Parliament or not?

In this view, the Speaker would be able to enforce a convention established over many years by ruling that no MP may raise a point of order during SONA, because the Speaker has the ultimate authority to control matters in Parliament and to enforce discipline.

This view would be in conflict with the Rule of Law, a founding value in our Constitution, which requires that public power can in general only be exercised if the Constitution, legislation or other legal rules authorise it.

The Joint Rules of Parliament do authorise the Speaker and the Chairperson of the National Council of Provinces (NCOP), acting jointly, to “give a ruling or make a rule in respect of any matter for which the Joint Rules do not provide”.

As the Joint Rules do not provide for the asking of questions, the Speaker and Chairperson of the NCOP can rule that no questions will be allowed during SONA.

But the Joint Rules do provide for the raising of points of order by MP’s during a joint sitting of Parliament. SONA is such a joint sitting of Parliament. Nothing in the Rules provide for treating SONA as different from any other joint sitting of Parliament.

If I am correct in this reading, it means that the Speaker (acting alone or jointly with the Chair of the NCOP) is not legally authorised to make a ruling to disallow points of order because this would amount to an unlawful attempt to circumvent the written Joint Rules of Parliament, which do allow MP’s to raise points of order.

(The Joint Rules can of course over time be amended. But they cannot be amended unilaterally by fiat of the Speaker.)

Of course, if EFF members do not only raise points of order as they are legally authorised to do by the Joint Rules of Parliament, but bang on tables, sing songs or otherwise create a grave disorder, the Speaker is authorised by Joint Rules 14K to “adjourn the sitting” or to “suspend the proceedings for a period to be stated by him or her”.

It is unclear whether the Speaker has the legal authority to have MP’s physically removed from Parliament if they create a disturbance. Section 11 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act states that:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

The Act generally distinguishes between “members” (in other words MP’s) and “persons” (non-MP’s), so whether the section applies to MP’s is not clear. It is also unclear whether exercising your right as an MP to free speech in Parliament by asking questions or raising points of order could ever be viewed as creating a disturbance.

I suspect in the months to come our courts may well have to give clarity on this question. What is clear that raising points of order will not fall under section 11, as one cannot take part in a disturbance by exercising one’s rights in terms of the Joint Rules.

In any event, despite the fact that a State of the Nation Address is probably going to have no impact on the quality of governance in South Africa and, hence, will have little impact on the lives of ordinary citizens, it is an event that is invested with much importance by politicians, media elites and the punditocracy.

It may therefore be strategically unwise for a political party to disrupt this event. A party who disrupts this flagship event runs the risk of inviting the wrath of the “opinion-formers” and media bosses who control the quality and the quantity of publicity a political party receives. Whether the EFF would be wise to take on the establishment in this way, thus remains an open question.

DA SMS judgment: what the court really found

How robust are politicians and political parties allowed to be when they engage in election campaigning? In the absence of a court finding to that effect, can one party call another party or its leaders racist? Can one candidate call another dishonest or callous without clearly stating that this was just his or her opinion and then setting out the factual basis for such an opinion? In the recent Constitutional Court judgment of Democratic Alliance v African National Congress and Another the majority of judges held that the Electoral Act and Electoral Code would normally allow such robust forms of speech. The minority judgment had a more restrictive view.

Last year before the general election the Democratic Alliance (DA) sent out an SMS during the election campaign which stated: “The Nkandla report shows how Zuma stole your money to build his R246m home….”

The African National Congress (ANC) approached the High Court for an interdict and other relief on the basis that the DA was not entitled by our law to distribute the SMS. The ANC relied on section 89(2)(c) of the Electoral Act and/or item 9(1)(b) of the Electoral Code, which prohibit any registered political party or candidate from publishing any “false information” with the intention of influencing the conduct or outcome of an election.

The majority of judges of the Constitutional Court have now rejected the ANC claim. Five judges (Justices Cameron, Froneman, Khampepe, Moseneke and Nkabinde) found it unnecessary to answer the question of whether the statement contained in the SMS was false or not. Instead, it found that the SMS expressed an opinion, not factual information, and was hence not prohibited by section 89(2)(c) of the Electoral Act or item 9(1)(b) of the Electoral Code.

The approach of these five justices towards the importance of freedom of speech during an election campaign differed markedly from that of the minority judgement. The five judges argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”.

As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections. That is why the relevant sections of the Electoral Act and the Electoral Code had to be interpreted in a manner that would limit freedom of expression as little as possible.

A minority of three judges (Justices Zondo, Jafta and Leeuw) seemed to focus more on the alleged threats posed by robust but potentially untrue or difficult to prove expression on the running of free and fair elections. For these judges elections cannot be free and fair where political parties or politicians are allowed to make statements about opponents that are not factually true, or not clearly couched as opinion based on true facts that are either well known or that are mentioned by the speaker when he or she expresses an opinion.

To provide a pertinent example: the minority seems to believe that a free and fair elections would be endangered if a politician was allowed to state that X was racist or that party X was racist – unless the politician clearly stated that he or she was expressing an opinion and referred to the factual basis for the expression of the opinion.

Whether this view is at all plausible in a vibrant democracy is not clear to me. If the minority view were to be sustained many of the views expressed by politicians during an election campaign would become illegal. If the minority view were upheld, many politicians (of all political parties) would face a ten-year prison sentence for expressing views that are false, partly false or that are impossible to prove as being true. As Justice Van der Westhuizen pointed out (in a separate majority opinion in which Madlanga concurred):

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.

For me what lies at the heart of the disagreement between the two majority opinions, on the one hand, and the minority opinion, on the other, is the trust the majority judges place in political parties to debunk the wild accusations of their opponents andthe trust they place in voters to take many of the claims made by politicians with a pinch of salt. The two majority judgments seem to accept that political discourse is often infused with rhetoric and false or only semi-true claims or claims that cannot easily be proven, but that voters are aware of this.

The minority judgment seems to be premised on the idea that the law should prohibit such forms of expression to protect voters from the political rhetoric that flies around during election campaigns. In my view the minority holds a slightly patronizing view of voters – as if we are unable to distinguish between political rhetoric masquerading as fact and actual fact. As if we must be protected by the law from being exposed to such rhetoric.

In any event, the five judges who delivered the main judgment for the majority interpreted the relevant provisions of the Electoral Act and the Electoral Code narrowly to limit the kind of speech that would be prohibited by it.

Pointing out that the Electoral Act imposes tough criminal penalties (up to ten years in prison) on anyone found in breach of section 89 of the Act, the judges suggested that the prohibition on false information needed to be interpreted narrowly. As such, the judges suggested that section 89 was designed to protect the mechanics of the conduct of an election: voting, billboards, ballot papers, election stations, observers, and vote counts.

As the judges explained, the kind of statement that would constitute the provision of “false information” would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election.

Contested statements whose correctness could not be proven would not, according to this view, derail the free and fair election because voters (with the help of other political parties) would distinguish between wild claims and proven facts.

According to the 5 justices the section was not intended to limit the ability of politicians or a political party to make statements about their opponents that may well be difficult to prove as fact: say, that X or the party she belongs to is anti-poor, or anti-black, or callous, or corrupt.

However, the five judges said that it was not in fact necessary to go as far as finding that section 89(2) does not prohibit the dissemination of any information aimed at influencing voters’ views about opposing parties. As the section only prohibits “false information”, all the court had to do was to decide whether the SMS constituted fact or opinion. If it contained opinion and not a statement of fact, it was not covered by the section and was thus not prohibited.

The justices held that the SMS fell outside the ambit of section 89(2) because it was not a statement of fact but an interpretation of the content of the Public Protector’s Report on Nkandla. The SMS did not state as fact that the Report found President Jacob Zuma guilty of theft. What it did was to say that the Report “showed” how the President “stole your money”. This was the opinion of the DA, not a fact.

The minority disagreed with this view. Relying extensively on apartheid era precedent from the then Appeal Court, the minority argued that the SMS constituted a statement of fact, not an opinion and, hence, contravened section 89(2) of the Electoral Act. A politician or party would fall foul of the relevant section of the Electoral Act and the Electoral Code unless it could clearly indicate that it was expressing an opinion and not stating a fact and it further provided the voters with the information on which the opinion was based.

In terms of this minority view it would be illegal to say that party X or candidate X was racist. But it would be legal to say in your opinion party X or candidate X was racist because, for example, X used the “k” word on such and such a date, or party X only had .01% black members or had no black leaders or party X had such and such a policy that discriminated against black people.

On this basis the minority found that the DA SMS on Nkandla was not phrased as an opinion but as a fact and that its statement of fact was false.

In contrast Justices Van der Westhuizen and Madlanga found that it did not matter whether the statement was one of fact or opinion (as, in any case, it would not always be easy to distinguish between the two), but rather “whether the statement is purporting to describe a readily falsifiable state of affairs which poses a real danger of misleading voters and undermining their right to a free and fair election”.

The judges then examined the content of the SMS to determine whether it could – on a generous interpretation – be said that the claim contained in the SMS was true. Unlike the other judges Van der Westhuizen and Madlanga found that the claim could possibly be considered true. The judges then concluded:

According to the Nkandla Report, there was “misappropriation” of taxpayer money. The President benefitted from it. The misappropriation appears to have been tacitly accepted and in certain circumstances caused by the President, as set out in the Nkandla Report. The Nkandla Report seems to “show” that the President at least accepted actions, which resulted in the misuse of taxpayer money, which should not have been used on the project. It does not indicate that the President intended to return the appropriated money. The conduct alleged in the Nkandla Report does fall under a broadly conceived but reasonably possible meaning of the word “stole”, used in the context of an election campaign.

It is important to note that even justices Van der Westhuizen and Madlanga did not find that President Zuma is a thief. They could not do so as a court had not found the President guilty of theft. Neither has the Public Protector found in her Report that the President had stolen any money.

What the justices did was to say that theft does not only have a technical legal meaning. For example, you can say colloquially that a cell phone company is robbing you blind by imposing their exorbitant rates on you. This does not mean the company has been found guilty of theft or armed robbery, but that you believe the company is wrongly inflating its prices in a manner that disadvantages you.

In any case, although the judgment of the majority has been hailed as a victory for freedom of expression during election campaigns, I am not sure it will make a big practical difference to the robustness of speech during election campaigns in South Africa.

This is because during past election campaigns in South Africa politicians and political parties have often made claims about their opponents not couched as opinion and not based on clear evidence. Up until now they have not faced any consequences for making often wild and even spurious claims about opponents.

Elections are often fought via sound bites (X is racist!; Y is anti-poor!; Z is corrupt!) and as Justice Van der Westhuizen pointed out “fairly little of what electioneering politicians say” in such sound bites is likely to be completely true.

European Court often condones restrictions on free speech to accommodate “sensitivities”

In the wake of the shocking murder of journalists and innocent bystanders in Paris last week, many commentators have extolled the virtues of the unfettered right to freedom of expression. But freedom of expression is limited in all democracies. The European Court of Human Rights often condone restrictions imposed on freedom of expression by democratic governments across Europe, finding that such restrictions comply with the provisions of the European Convention of Human Rights. I have dug up a few examples to illustrate this rather obvious, but often ignored, point.

In 2013 Chelsey Manning was convicted by a United States court of violating the Espionage Act and other offenses, after releasing classified documents eventually published on Wikileaks. Manning is serving a 35-year prison sentence for her “crime”. But it is not only in the US where freedom of expression is often restricted for political, religious or so called “moral” reasons.

In what follows I provide examples of recent freedom of expression judgments of the European Court of Human Rights that demonstrate that across Europe courts often justify restrictions on freedom of expression and that Europe’s highest human rights tribunal regularly upholds such restrictions.

This means that it may not be accurate to imply (as some – but not all – commentators on the Charlie Hebdo tragedy have done) that any state that imposes limits on freedom of expression to accommodate the religious sensitivities of a section of the population would in effect condone religious tyranny and intolerance.

Otto-Preminger-Institut v Austria (1994)

In 1985, at the request of the Innsbruck diocese of the Roman Catholic Church, an Austrian public prosecutor instituted criminal proceedings against Otto-Preminger-Institut’s manager for “disparaging religious doctrines”, an act prohibited by section 188 of the Austrian Penal Code for advertising and showing a film Das Liebeskonzil (“Council in Heaven”).

The authorities subsequently seized the movie. It was the seizure of the movie and the legal provision that authorised this that was challenged before the European Court of Human Rights on the basis that it unjustifiably infringed on article 10 of the European Convention of Human Rights. Article 10(1) states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

Das Liebeskonzil portrays God as an apparently senile old man prostrating himself before the Devil with whom he exchanges a deep kiss and calling the Devil his friend. The adult Jesus Christ is portrayed as a low-grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting.

Finding that the seizure of the movie did not infringe unjustifiably on the right to freedom of expression the Court took note of the fact “that the Roman Catholic religion is the religion of the overwhelming majority of” the community in which it was shown.

In seizing the film, the Austrian authorities acted to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.

Leroy v France (2008)

In 2002, the French cartoonist Denis Leroy was convicted for complicity in condoning terrorism for drawing a cartoon representing the attack on the twin towers of the World Trade Centre, with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it”.

The conviction was secured in terms of article 24, section 6 of the French Press Act of 1881, which penalises, apart from incitement to terrorism, also condoning (glorifying) terrorism.

The Court argued that through his choice of language, Leroy commented approvingly on the violence perpetrated against thousands of civilians and diminished the dignity of the victims, as he submitted his drawing on the day of the attacks and it was published on 13 September.

According to the Court, the cartoon had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in the region. In the circumstances the European Court of Human Rights found that the conviction constituted a permissible limitation on the right to freedom of expression protected by article 10 of the European Convention of Human Rights.

Mouvement Raëlien Suisse v Switzerland (2012)

The aim of the Raëlien movement is to make the first contacts and establish good relations with extra-terrestrials. The Raëlien Movement’s followers believe that scientific and technical progress is of fundamental importance and that cloning and the “transfer of conscience” will enable man to become immortal. In that connection the Raëlien Movement has expressed opinions in favour of human cloning.

In 2001 the Swiss arm of the movement was denied permission to launch a poster campaign on the basis that the Raëlien Movement was a sect and engaged in activities that were contrary to public order (ordre public) and immoral.

The movement wanted to put up posters with the heading: “The Message from Extra-terrestrials”. At the very bottom was the phrase “Science at last replaces religion”.

The European Court confirmed the legality of the prohibition on the distribution of the posters, noting that the movement were still able to continue to disseminate its ideas through its website, and through other means at its disposal such as the distribution of leaflets in the street or in letter-boxes.

Ï.A. v Turkey (2005)

In 1994 the applicant was convicted of blasphemy against “God, the Religion, the Prophet and the Holy Book” after publishing a book criticising the beliefs, ideas, traditions and way of life of Anatolian Turkish society “by adopting the independent and nonconformist viewpoint of the leaders, thinkers and scientists of the Renaissance in order to enlighten and advise our people as he sees fit”.

The book contained passages that implied “a certain element of humiliation, scorn and discredit vis-à-vis religion, the Prophet and belief in God according to Islam”.

The European Court on Human Rights declined to find that the conviction constituted an unjustifiable infringement on the right to freedom of expression protected in article 10 of the Convention of Human Rights.

Noting that the impugned action against the author was “intended to provide protection against offensive attacks on matters regarded as sacred by Muslims” it held that the measures “may reasonably be held to have met a ‘pressing social need’”.

Wingrove v The United Kingdom (1996)

Mr Nigel Wingrove, a film director, made a video entitled Visions of Ecstasy, which he hoped to distribute to interested people across the United Kingdom. The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa.

It begins with the nun, dressed loosely in a black habit, stabbing her own hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground.

The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord which is suspended from above and tied around her wrists. The near-naked form of a second female, said to represent St Teresa’s psyche, slowly crawls her way along the ground towards her. Upon reaching St Teresa’s feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her.

The British Board of Film Classification refused to authorise the lawful distribution or showing of the movie due to its “obscene” nature and because the movie was “blasphemous”. Although it was not blasphemous to speak or publish opinions hostile to the Christian religion if the publication is “decent and temperate”, “the tone, style and spirit” of the movie was “bound to give rise to outrage at the unacceptable treatment of a sacred subject”.

The European Court of Human Rights found that “it was not unreasonable” for the UK authorities to refuse to classify the movie for distribution. Although this amounted to a complete ban on the film’s distribution, “this was an understandable consequence” of the blasphemous nature of the movie.

The Court thus found that the banning of the film was justified as being necessary in a democratic society within the meaning of paragraph 2 of Article 10. This paragraph states that:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

These examples suggest that many states across Europe pass laws or impose judicial limits on free speech to accommodate the religious and moral sensitivities of members of their societies. Europe’s highest human rights tribunal does not always view these restrictions as threatening basic democratic freedoms on the continent. This suggest that reasonable people may well differ on the necessity to limit speech to accommodate religious and other “sensitivities”.

Many of us may well disagree with the latitude shown by the European Court of Human Rights towards such limitations. We may prefer a more expansive interpretation of free speech and a more restrictive interpretation of the justifiable limitations on freedom of expression.

However, any relatively informed person will have to think twice before arguing that any state that limits freedom of expression to accommodate the religious sensitivities of a section of the population would condone religious tyranny and intolerance or that demands for such limitations itself constitute an attack on freedom, liberty and democracy.

James Bond and the National Key Points Act

The National Key Points Act, passed by the apartheid Parliament in 1980 to protect the PW Botha regime and those who collaborated with it, is a constitutional abomination. Yet, when civil society groups requested the list of National Key Points from the Minister of Police in terms of the Promotion of Access to Information Act (PAIA), this request was refused on the grounds that making the list public would provide information to “dark forces” out to destabilise South Africa. The Gauteng High Court had no problem in rejecting this laughable claim and ordered the release of the list.

Secrecy becomes a habit for those with something to hide. No wonder the apartheid state was notoriously secretive. Although the rumour that PW Botha’s matric certificate was classified information could never be confirmed (let’s just say that he was no academic overachiever), much else in apartheid South Africa was classified information. When the apartheid state finally came crashing down in the early 1990ties the paper shredders worked overtime to destroy the (secret) evidence on extra-judicial killings, torture and other state crimes.

The National Key Points Act played its part in creating this web of secrecy and deceit. Although the list of National Key Points was never made public, citizens could be prosecuted for revealing information about security measures at National Key Points, creating a Kafkaesque world in which you could be sent to prison for something that you could not have known was a crime.

Sadly (but perhaps not surprisingly) the Act was never repealed or amended after the advent of democracy. It has, instead, been enthusiastically (but only selectively – more on this later) used to suppress information about facilities about which the public may ask awkward questions. A certain private home in rural KwaZulu-Natal comes to mind.

The Act allows the Minister to declare any place a National Key Point, among other reasons “whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. As the High Court pointed out this gives the Minister (now the Minister of Police) almost unfettered discretion to declare places National Key Points if he or she wants to keep information about it secret.

The declaration of a place as a National Key Point has some interesting consequences. Section 3 of the Act states that once declared a Key Point:

the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.

Famously this provision was ignored after President Jacob Zuma’s private home was declared a National Key Point. It was argued that a cabinet decision on security upgrades at Presidential homes governed the Nkandla renovations. However, it is unclear how a policy decision taken by one branch of government, can trump legislation passed by another.

The Constitutional Court ruled in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others that the executive cannot amend the provisions of an Act of Parliament as this would breach the separation of powers. The cabinet policy therefore could not amend the provisions of the National Key Points Act.

A fascinating legal question is whether a cabinet policy can be invoked to justify state-funded “security upgrades” at a National Key Point, given that the Act requires the owner to carry the cost of any security upgrades. In her report the Public Protector assumed that it could. But I would be surprised if a court found that the peremptory provisions in an Act of Parliament could be overridden by a cabinet policy.

Section 3B of the Act also requires the establishment of a “Special Account” which can be used to render financial assistance – including loans – to the owners of National Key Points required to improve the security on the property. This Special Account has never been created. This means another pivotal section of the National Key Points Act has not been complied with.

Section 10 of the Act further creates several criminal offences regarding National Key Points. Amongst others, it prohibits any person from furnishing “any information relating to the security measures applicable at or in respect of any National Key Point”.

When the list of National Key Points is kept secret it means that ordinary citizens may not know when they commit a crime relating to a National Key Point. The High Court correctly found that keeping the list of National Key Points secret was in conflict with one of the basic tenets of the principle of legality.

This is so because there can be no secret laws. “One of the central tenets underlying the common-law understanding of legality is that of foreseeability – that the rules of criminal law are clear and precise so that an individual may easily behave in a manner that avoids committing crimes.” For this reason alone, according to the High Court, the list of National Key Points had to be made public.

The state also had an obligation in terms of PAIA to make the list public. Section 11(3) of PAIA makes it clear that a requester of information need not justify a request for information held by the state. In contrast, if the state refuse to provide the information requested it is the state who has to justify its refusal.

In this case, the state failed to provide any evidence of why it was justified to keep the list of National Key Points a secret.

The High Court quoted extensively from the Constitutional Court judgment in President of the Republic of South Africa and Others v M & G Media Ltd to explain what was required from the state to justify a refusal to provide information held by it.

In order to discharge its burden under PAIA, the state must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach … is therefore to ask whether the state has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemption claimed. The recitation of the statutory language of the exemptions claimed is not sufficient for the state to show that the record in question falls within the exemptions claimed. Nor are mere ipse dixit affidavits proffered by the state. The affidavits for the state must provide sufficient information to bring the record within the exemption claimed.

“Sufficient information” was never provided in this case to justify the secrecy. Instead the state alluded to “dark forces” that are out to destabilize peace-loving countries, like our own. By way of illustration, the state referred to the bombing of the mall in Nairobi as this supposedly shows “how vulnerable countries and their citizens are.” As the High Court remarked:

This is, self-evidently, an ill chosen example; ie, to compare a shopping centre being exposed to politically inspired violence, where the public congregate en masse, with a key point, is inapposite. However, it may be supposed that, upon a generous interpretation of the remark, it was intended simply to illustrate the generic exposure to unexpected violence that everyone experiences. Nevertheless, to give voice to a bland truism contributes nothing to a justification under PAIA.

In fact, the court found that the state wholly failed to provide any evidence for denying access to the list. The state claimed that making the list public would endanger the lives of people and was likely to endanger state security. But it did not provide any facts to back up this bold claim. On the contrary, the state itself had on previous occasions revealed that some places have been declared National Key Points, rendering its argument that such revelation threatens the security of individuals or the state difficult to accept.

As the High Court wryly remarked:

The rationale offered by the respondents is spoilt by the conduct of the Government itself, because evidence was adduced of ministers having furnished details of key points to Parliament for the whole world to know, including, presumably, those dark forces that lurk in wait to disturb our tranquillity. A further example of public disclosure of a key point adduced by the applicants includes the very public announcement that Nkandla, the private home of President Zuma, has been declared a key point.

The Court also rejected the state’s “James Bond defence”. Perhaps answering the question on whether the law has a sense of humour first posed by Justice Sachs in the Laugh it Off case, the High Court rejected this defence in the following manner:

In argument, counsel for the respondents, quite properly, was driven to concede that there was no evidential material disclosed in the papers to support the refusal. He contended that the predicament of the respondents was illustrated by the experiences of that well known gentleman adventurer and upholder of noble causes, James Bond, who, albeit it must be supposed, with his customary charm and grace, declined to disclose a fact to a questioner, because were he to do so, he would have to kill him. This is an interesting submission, which, alas, is spoilt by the absence of such an allegation under oath.

Hopefully the state will not appeal the judgment. If it does appeal, it will almost certainly lose again, wasting taxpayer’s money in the process.

But this judgment is only a partial victory for common sense and openness. The case did not deal with the larger question of whether the Key Points Act was unconstitutional. Given the untrammelled discretion given to the Minister to declare places National Key Points, aspects of the Act will almost certainly be declared unconstitutional if they were to be challenged.

But that question will only be definitely answered when the constitutionality of the Act is challenged in court. Hopefully the court will get the opportunity to answer this question in the near future.

Why everything you think you know about free expression is false

Steve Hofmeyr and his supporters claim that a puppet called Chester Missing has infringed on his right to freedom of expression by challenging his racist statements and by challenging his sponsors for supporting his racism. They do not seem to understand that your right to freedom of expression does not always give you a right to freedom from the consequences of your expression.

The protection of freedom of expression is a prerequisite for the proper functioning of a democracy. When the state or individuals use the law to supress the free flow of ideas and information needed to make informed political choices, the quality of the democracy is diminished. We are then forced to make partially informed or uninformed decisions about whether to vote and if we vote for whom to vote.

A world in which books, movies or songs are banned; comedians are censored; prophets, artists, writers or poets jailed; academics gagged; critical voices silenced; or cultural conformity imposed through court orders or threats of violence is a world in which the human dignity of every person is not respected. This is so because our agency as human beings is diminished when we do not have at least the possibility of being exposed to life changing forms of artistic, religious or intellectual expression.

The problem with these lofty sounding principles is that not all forms of expression have equal value. But it is difficult to distinguish between forms of expression that enhance democratic debate and enrich our lives, and forms of expression that have little or no value or harm people and sabotage democratic debate.

For this reason people who are strong supporters of freedom of expression often claim to endorse the view (attributed to Voltaire) that “I may disapprove of what you say, but I will defend to the death your right to say it”.

Underlying this view is the assumption that we cannot trust anyone or any institution to decide impartially and fairly what types of expression are worthy, enriching and democracy-enhancing and what types of expression have little or no value. We therefore need to protect all types of speech in the hope that democratic deliberation in the so-called “free marketplace of ideas” will help us to establish the “truth” about a matter.

But if you scratch below the surface you soon realize that this view of freedom of expression is false. The degree of support we offer for the right to free expression of others depends partly on whether we believe the expression has value or not; whether we believe it forms part of a legitimate debate or whether the speech is so objectionable that it extends beyond what we are prepared to defend. This is not easy to admit because it robs the right to freedom of expression of some of its moral clarity.

We accord different value to different types of expression and grant different levels of protection to the expression depending on the value we attach to it. We value some forms of expression so much that we actively promote it and jealously guard the space within which it can be expressed. We attach little or no value to other forms of expression and do not mind if these ideas are not given wide publicity. Other forms of expression – inciting people to commit mass murder, or child pornography, for example – are so objectionable that we have no problem in having these ideas suppressed.

We may claim to be prepared to defend all views to the death, but we lie when we do so. We all tolerate different kinds of expression to different degrees depending on our political and ethical commitments. While we may defend some views vigorously, we will defend other views more tentatively while we will be prepared to have other views censored entirely.

Let us look at a few examples to illustrate this point.

Very few South Africans will vigorously defend and actively seek to provide a platform for the views of paedophiles who argue for the legalization of sex with young children. This is so because as a society we have decided that adults who force children to have sex with them harm those children – we do not need further debate on the issue to decide whether this is true or not.

While some of us might, at a push, defend the right of paedophiles to state their views without being arrested or censored, few of us will not object if we discover Pick & Pay or Landrover is sponsoring the paedophile’s activities. Those who claim that the right to free speech of the paedophile is being infringed by those who ask sharp questions of Pick & Pay and Landrover for sponsoring the paedophile, will reveal that they believe reasoned debate about the value of paedophilia is possible and desirable.

Similarly, in a democratic society based on the value of human dignity and equality the views of a racist, sexist or homophobe might similarly be legally tolerated while also not actively being promoted or accepted. This is because most of us do not believe that there are two valid sides to the argument. If you are a bigot who believes that black people are inferior to white people most of us think your belief has no value in a democracy – arguing about it would only give credence to the bigotry.

This means that those who object to targeting Pick & Pay and Landrover for sponsoring Hofmeyr are saying that while they might not agree entirely with Hofmeyr they are relatively tolerant of racism and bigotry and believe that there is a valid argument to be made in support of the contention that black people are inferior to white people. This is a political and ethical choice (in my view a despicable choice, it must be said) which implicates Hofmeyr’s defenders in tolerance of bigotry.

Defending some forms of free speech is not always value neutral.

The same principle applies to those who deny the Holocaust or argue that the Nazi’s did a great job by exterminating 6 million Jews. As a society we have decided that there is no value in debating whether the Holocaust occurred or whether the mass murder of the Jews was a good idea. Why debate something that is so obviously evil – it will just give credence to the disproved and harmful views of a few lunatics? We may or may not criminalise Holocaust denial, but few of us are going to champion the rights of denialists to make money out of their hatred and bigotry from sponsorships by private companies.

Some forms of expression – expression that is defamatory or contains hate speech, for example – are also regulated by law. Few if any of those who say they will defend to death your right to have your say have ever defended to the death the right of everyone to defame others or to incite violence against them.

These examples illustrate that we tolerate or protect different types of expression to different degrees. Our Constitution protects speech (apart from narrowly defined forms of hate speech), which means it would seldom be constitutionally valid to use the law to censor or suppress expression. That is why no one has used the law to censor Hofmeyr’s racism.

But there is a huge difference between using the law (with the full might of the state behind it) to silence someone and for private individuals to challenge the speaker and those who support him or her financially or otherwise about their views.

When the speech is of a kind that has little or no value for the democracy (and I contend that racism and bigotry has little value for a democracy), it may be tolerated without being accepted and promoted. When a large company accepts and promotes such bigotry and racism, that company should therefore not be surprised if it is called out about it and pressurized to stop its support for speech that is both bigoted and racist.

There is another reason why those who claim to be prepared to defend to death the right of everyone to say what he or she wishes, are talking nonsense. This is because the “free marketplace of ideas” – on which this notion depends – is of course a ridiculous fiction. Not all views are treated equally in any society or by anyone and none of us give all views a fair and equal chance to be heard.

The free marketplace of ideas is not only a fiction because as a society we have already judged some types of expression as worthless or positively harmful and therefore not worthy of protection or worthy of only minimal protection. It is also a fiction because there cannot be free and fair competition of ideas in a capitalist society.

Ideas can only compete freely with each other if people are exposed equitably to these ideas and are given a fair opportunity to consider them. But many worthy (and many not so worthy) ideas are not given a fair opportunity to be heard because these ideas threaten the status quo or is considered harmful to society.

How often have you heard the views of a paedophile arguing in favour of sex with small children broadcast on television? Not that often, I would guess, because the “market” has decided to censor those ideas because they are viewed as harmful to society.

Moreover, where those who distribute information (via radio, television, in the print media, or on internet websites) have a vested interest in retaining the status quo they will seldom promote ideas that challenge the status quo. And for commercial reasons, the media often tone down criticism of their advertisers or of the politicians and political parties their customers support. Financial considerations play an important role in determining what ideas we are exposed to and in what way we are exposed to these ideas.

Think about this: Pick & Pay is not going to allow you to take up position in one of its stores to tell customers that Pick & Pay must be boycotted because it supports an Afrikaans music festival where a racist “artist” (I use the word expansively) will be performing. And will the local shopping centre in Sandton allow the Economic Freedom Fighters to hold a rally in its food court to drum up support for the next election? I suspect not.

Those who defend Hofmeyr on the basis that by targeting his sponsors we are censoring him, are really saying we are distorting the free marketplace of ideas. We are exploiting the fact that big companies want to make a profit in order to limit the extent to which bigoted and racist views are given a platform in the marketplace.

This is a nonsense argument as there is no free marketplace of ideas to start with. A company supports an “artist” because it believes the sponsorship will enhance its brand. It will never support ideas – say the ideas in support of paedophilia – that it knows will harm its brand. By alerting the company to the damage caused to its brand by its support for bigotry, we are helping it to make the kinds of choices it makes every day. Besides, no one has a right to make a profit out of his or her bigotry and racism. I have checked the Constitution and can confirm that no such right is contained in it.

So, tough luck Mr Hofmeyr. The more racist nonsense you talk, the less likely it is that you will retain any sponsors and the more likely it is that you will not be invited to appear at festivals. If you want to make money out of your bigotry you might have to record another karaoke CD. I am sure there are still some sad people out there who support you and will buy your records.