I believe in freedom of expression. Our Constitution protects the right to freedom of expression. That is why I cannot welcome the Equality Court’s ruling that Malema was guilty of hate speech when he commented on the young woman who had accused President Jacob Zuma of rape.
Please understand that I am not defending Malema. I am defending his right to freedom of expression, which is also mine and yours and which means nothing if it does not include the right to say things that offend other people.
This is what Malema said: “Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning, that lady requested breakfast and taxi money.”
He made his comment after Zuma had been acquitted of rape — so in the eyes of the law, the woman is not a rape survivor — but the words are nonetheless grossly offensive in the context of a society in which rape occurs frequently and survivors who get their day in court are often called upon to justify their sexual behaviour.
But do his words constitute hate speech?
Hate speech is defined in the Constitution as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (my italics). Malema’s words were undoubteldy hurtful to many people. They may, at a stretch, be construed as “advocacy of hatred” based on gender. But did they constitute incitement to cause harm? I think not. And so, offensive though the words were to our sensibilities, they should be protected by the the Bill of Rights.
The Promotion of Equality and Prevention of Unfair Discrimination Act, under which Malema was charged and convicted, has, however, complicated issues by adopting a far wider definition of hate speech than the Constitution. The Equality Act (for short) defines hate speech as words ”that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth”.
Many legal commentators have argued that this definition is unconstitutional because it is too wide in its application. The constitutional definition applies to only four grounds: race, ethnicity, gender and religion. The Equality Act criminalises hate speech on seventeen grounds. Furthermore, the Constitution requires an intention to cause harm. That is an objective fact: in the absence of such an intention, words cannot constitute hate speech.
The Equality Act, however, requires only that words could be construed as having the intentiuon of being hurtful, harmful or hateful to constitute hate speech, regardless of the actual intention of the person who utters them. This conjures up, as one legal commentator noted, an image of highly sensitive individuals using the Equality Act to insulate themselves inside their own intolerant world. In Malema’s case, many people would undoubtedly construe his words as having the intention to be hurtful, and that explains his conviction of hate speech in terms of the Act. But what are the implications for us as a free society?
Am I to be denied the right, for argument’s sake, of criticising Jacob Zuma’s prediliction for polygamous marriages because that may be hurtful to people who subscribe to a particular culture? Is it verboten to publish a picture of the Prophet Muhammad because that would be hurtful to Muslims, or to teach evolutionary theory because that offends some Christians?
The hate speech provisions of the Equality Act have not yet been tested in the Constitutional Court. Perhaps this would be an opportunity. It would be a good test of how seriously we, as South Africans, take our right to freedom of expression.
(A version of this article also appears on Robert Brand’s personal blog at http://robertbrand.wordpress.com/.)