Quote of the week

Mr Malema’s remarks that the IEC “continues to rig elections … You stole our votes in Alexandra and we allowed you” is unsubstantiated and has the capacity to undermine the impartiality and effectiveness of the IEC, as the critical local government elections loom. It is ironic that the EFF has chosen to attack the IEC in this manner so soon after going to great lengths to safeguard the independence, power and authority of another Chapter Nine body, the Public Protector. The Constitutional Court judgment in the Nkandla matter was a strong vindication of the importance of these independent constitutional bodies in our system of governance.

Council for the Advancement of the South African Constitution
3 September 2013

Qwelane: still a homophobe, but his challenge to hate speech clause is sound

Jon Qwelane, South Africa’s Ambassador to Uganda (that bastion of respect for the human dignity of all), is a self-confessed homophobe. He also used to be a spectacularly unaccomplished columnist. His Sunday missives often read like the first draft of a stag party speech written in a bar on the back of a cigarette box. But he must have a talent for constitutional law, because his contention that the hate speech clause in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) is unconstitutional, is sound.

In 2011, former Sunday Sun columnist, Jon Qwelane, was found guilty of hate speech for contravening section 10 of PEPUDA. The Court found that an article he wrote (as well as an accompanying cartoon) propagated hatred and harm against gay men and lesbians and ordered him to apologise unconditionally and to pay a R100,000 fine to the Human Rights Commission.

In the article Qwelane fumed against “gays” and “lesbians”, stating in apparent horror: “nowadays; (sic) you regularly see men kissing other men in public, walking holding hands and shamelessly flaunting what are misleadingly termed their ‘lifestyle’ and ‘sexual preferences’”. He concluded:

I do pray that some day (sic) a bunch of politicians with their heads affixed firmly to their necks will muster the balls to rewrite the constitution of this country, to excise those sections which give licence to men ‘marrying’ other men, and ditto women. Otherwise, at this rate, how soon before some idiot demands to ‘marry’ an animal, and argues that this constitution ‘allows’ it?

I assume when Qwelane referred to men kissing other men in public he was not referring to Premier League Football players regularly celebrating the scoring of a goal by hugging, kissing each other and flaunting their joy at “scoring” with such gay abandon. Neither am I sure why flaunting one’s love for another adult human being in public would horrify anybody – unless it stimulates delightful longings in them that they would rather like to repress.

I regularly see heterosexual couples kissing and holding hands in public and shamelessly flaunting their so called heterosexual “lifestyles” and it does not bother me at all. Really, it does not. (I may have issues with the way in which some heterosexual suburban couples decorate their houses – I mean, really, a braai inside the house – but after serious soul searching I have concluded that this horror I have of suburban kitsch is not enough to warrant support for discrimination against all heterosexuals.)

I assume my broad-mindedness stems at least partly from the fact that I have no secret yearnings (suppressed by religiously instilled self-hatred) to engage in a so called heterosexual lifestyle myself. I am relatively ambitious, so I obviously do not aspire to the heterosexual lifestyle (I tend to aim a bit higher) but I firmly support equal rights for all heterosexuals.

Neither do I believe just because the constitution prohibits the law from discriminating against heterosexuals and allows them to marry that one of these days an idiot heterosexual would demand to marry an animal (of a different sex, I would assume). This is because – unlike Qwelane – I do not associate sexual intimacy with having my way with a goat. Call me old fashioned or unadventurous, but usually when I think of sex I imagine this to be between two human beings. Qwelane must have a more fertile imagination.

Qwelane has been stalling ever since he was found guilty of hate speech, but last week he announced that he was challenging the constitutionality of the relevant PEPUDA provisions.

Contrary to popular belief, the Constitution does not prohibit hate speech. Section 16(1) of the Constitution allows “everyone” (even homophobes like Qwelane) the right to enjoy freedom of expression. However, section 16(2) excludes certain forms of speech from protection and thus allows the legislature to limit these excluded forms of speech. Section 16(2)(c) – sometimes referred to as the hate speech exclusion – thus states that advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm, is not protected by section 16(1).

It would therefore be impossible to challenge the constitutionality of any legislative provision that mirrors the wording of section 16(2)(c). But PEPUDA goes much further than section 16(2)(c) and imposes a far more drastic limitation on freedom of expression than that allowed by section 16(2)(c).

Section 10 of PEPUDA states that a person may not “publish, propagate, advocate or communicate” words against any person based on prohibited grounds such as race, sex, gender, disability, sexual orientation and religion “that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred”.

Although bona fide engagement in artistic creativity, academic and scientific inquiry and fair and accurate reporting in the public interest are excluded from this prohibition, it would still include many forms of expression, including much of what is written in opinion pieces in newspapers and on blogs as well as much of what is preached in religious institutions. The provision may well therefore be overbroad and unconstitutional – just as Qwelane argues.

Unlike the exclusionary provision in the Constitution, section 10 does not require the speech to constitute “incitement to cause harm”. All that is required is that a reasonable person must believe that the speech had the intention to be hurtful to a designated group. Unlike the exclusionary provision in the Constitution, section 10 does not only deal with speech based on race, gender, ethnicity or gender. It limits potentially hurtful speech based on all 16 grounds listed in section 9 of the Constitution, as well as all similar grounds. These include sexual orientation, age, marital status and disability.

Section 10 does not require the aggrieved party actually to show that the person who engaged in the speech had the intention to be hurtful or to harm anyone. Neither that the speech actually incited or caused harm. All he or she will have to show is that a reasonable person, looking at the context within which the words were spoken, would have construed the person who uttered the words as having such an intention.

Of course, the age-old problem about how we decide what a reasonable person would have thought when it seems impossible in a diverse society like ours to postulate a single universal standard of reasonableness, will raise its head in each case. Are we going to rely, yet again, on the view of the so-called reasonable, middle-class, white, heterosexual man when we must decide what a reasonable person would have thought – as the courts explicitly did until recently and often still do implicitly?

A criticism levelled against the judgment in the Julius Malema hate speech case in which he was found guilty of hate speech on the basis of race when he sang “Awudubula (i) bhulu… Dubula amabhunu baya raypha”, is exactly that the judge used such a reasonable white man standard in concluding the words constituted hate speech.

But even if we could overcome this problem and could, miraculously, conjure up a completely neutral standard against which to judge what is reasonable, section 10 of PEPUDA would still potentially have a severe chilling effect on freedom of expression (as well as on freedom of religion). Much of the teaching of mainstream religious groups on homosexuality, for example, would almost certainly fall foul of the hate speech provision.

When a priest or imam targets “practicing” gay men and lesbians (as if we need any practice) in a talk and brands us as “sinners”, many so called reasonable people will surely assume that they had the intention to be hurtful to gay men and lesbians. After all, people who are hurting are more vulnerable and more likely to believe what you have to sell to them.

Much of the less sophisticated rhetoric of (some, but not all) religious leaders are aimed at putting the fear of God into people and at making them feel bad about who they are and how they live their lives in order to present some sort of Messiah as the alternative that would cure you of your fear and your (religiously-instilled) self-disgust. How can this simplistic rhetoric so often employed by religious groups not be aimed at hurting gay men and lesbians?

But should such speech be banned? I am far from certain that it should. After all, when someone peddles his or her sad and petty hatred of others because who they love, I pity the person and feel slightly embarrassed on his or her behalf. Why ban certain forms of speech just because it reveals that those who engage in it are wretched (and often lost and unthinking) fools?

Of course, some speech may pose a threat to the constitutionally mandated objective of building the non-racial and non-sexist society based on human dignity and the achievement of equality. Such speech can and should be limited in a constitutionally permissible manner – even if it falls outside the exceptions carved out in section 16(2). But such a limitation on freedom of speech cannot be overbroad.

Given the fact that section 10 clearly limits the right to free expression, that the reach of the section is extremely broad and that a more narrowly tailored provision would probably be able to serve the same important purpose of protecting our democracy against speech that hatefully incite harm against others, I suspect that Qwelane might just have gotten lucky and that his constitutional challenge will be successful.

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