Election 2009: Free-speech tonic or Kill Bill II?

In his address to students at the University of the Witwatersrand, the South African Human Rights Commission’s Jody Kollapen said that South Africans must prepare themselves for speech that will shock, disturb and offend them.

“We’re going to find robust contestation around ideas,” Kollapen said.

Cautioning the public against merely calling for this speech to be prohibited, he said there was a real danger that doing so could stifle the need for vibrant discourse and discussion.

Offensive speech could only be considered hate speech if it constituted incitement to cause harm, physical or psychological, he said.

“The difficult issue often one has to deal with in society is whether speech that is tough, that is disturbing, that may be shocking should be circumscribed.

“I don’t think it should be circumscribed. I think we should ensure that we are able to encourage that kind of open dialogue, debate, and in each case determine where the line should be drawn appropriately,” Kollapen said.

“I’m inclined to say people should be allowed to express their view as long as it does not constitute incitement to cause harm.” — IOL

Kollapen is accordingly preparing us for robust debate and asking South Africans, save where there is incitement to harm, to encourage open dialogue and venting of all the issues.

Other than the issue of hate speech, parties are at liberty to speak their minds with the line being drawn, where applicable, on an ad hoc basis. Based upon those guidelines I need hardly point out that South Africans would be enjoying greater freedom than most democracies the world over.

A number of questions present themselves.

We are currently living in one of the most violent societies in the world where tolerance has been in very short supply. Xenophobia, faction fighting in the ruling party and crime has turned the country into a powderkeg. As such, will free speech act as a lance to the boil, which empties the pus and releases the pressure, or will it act as a catalyst to unleash Armageddon?

In light of the violence, do you believe that South Africans are mature enough to accept the views of others no matter how unpalatable they find them to be and respond with their views rather than some form of aggression?

Vital to your answers to the above questions, and should it transpire that the views of certain powerful groups cross the line on hate speech, would they be prepared to abide by the laws of the country and the parties designated to enforce them?

For example, the Democratic Alliance and the opposition parties right now own the moral high ground. They can throw verbal bombs on just about everything from Zimbabwe, factionalism, corruption and failure to deliver on election promises to just about anything. If in response to that, we have ANC elements calling upon the population to classify them as counter-revolutionaries, as we are seeing right now, and inciting the population to take steps against them, will the SAHRC intervene and does it have the teeth to bring these elements into line?

Should you believe that free speech should be unrestricted — that we are mature enough to accept criticism and respond appropriately and that everyone will abide by the mechanisms in place for ensuring that the boundary on hate speech will be respected — do you believe that, post-elections, South Africans will emerge stronger and with a better understanding of each other or will there be a simmering hatred at having found out what we really think of each other?

Over to you.

In order to assist you, herewith sections 15 to 19 of our Constitution

Section 15: Freedom of religion, belief and opinion

(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or state-aided institutions, provided that —
(a) those observances follow rules made by the appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation recognising —
(i) marriages concluded under any tradition, or a system of religious, personal or family law; or
(ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.

Section 16: Freedom of expression

(1) Everyone has the right to freedom of expression, which includes —
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to —
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Section 17: Assembly, demonstration, picket and petition

Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

Section 18: Freedom of association

Everyone has the right to freedom of association.

Section 19: Political rights

(1) Every citizen is free to make political choices, which includes the right —
(a) to form a political party;
(b) to participate in the activities of, or recruit members for, a political party; and
(c) to campaign for a political party or cause.
(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.
(3) Every adult citizen has the right —
(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and
(b) to stand for public office and, if elected, to hold office.