The South African Civil Society Information Service

The Hate Speech Conundrum

By Jane Duncan · 20 Apr 2010

ANC Youth League leader Julius Malema is a fool. He represents the dumbing down of South African politics, and the country is ill served by him remaining in a leadership position.

His repeated chanting of ‘Shoot the Boer’ is opportunistic, as it allows him to portray himself as a ‘revolutionary bull’ - in the words of ZANU PF’s Saviour Kasukuwere – to deflect attention away from his shady business and personal affairs.

But does this mean that the North Gauteng High Court was correct in interdicting him from singing ‘Shoot the Boer’, and should the Equality Court find him guilty of hate speech next month and recommend his prosecution? The answer to both questions must be no.

This does not mean, though, that he should have continued singing the song, in defiance of an ANC instruction; rather he should have allowed the constitutionality of the song to be argued in court.

The Malema affair also raises a bigger set of questions. Should public utterances of the song and other ‘hate speech’ be banned in a similar manner? These questions have become important, even urgent, as racially charged speech becomes more evident in gatherings and public meetings, the comments sections of online news sites, blogs and social networking sites.

When the final constitution was drafted in 1996, the ANC motivated for hate speech not to receive constitutional protection, as they wanted to send a strong message that the sort of white-on-black racism that characterised apartheid would not be tolerated in a democracy.

What an irony that in the most significant hate speech judgements of recent years, the guilty parties of hate speech have generally been black.

Incrementally, Parliament, the South African Human Rights Commission (SAHRC) and now the courts have broadened the definition of hate speech to the point where huge swathes of political speech can now be censored. This applies particularly to speech expressing black rage at continuing poverty, growing inequality and the maintenance of white privilege in post-apartheid South Africa.

Anyone with a knowledge of hate speech laws internationally will be aware of a trend where hate speech laws are often used against the very constituencies that were meant to be protected by them, including black activists, women, Muslims and lesbians. South Africa is starting to demonstrate a similar trend, which raises troubling questions about who really holds the power in our society to define and police the bounds of the expressible.

Malema’s credentials as a spokesperson for black frustrations are dubious to say the least, but when the recent patterns of hate speech prohibition are considered, the interdict is bad news. It strengthens a trend towards state authoritarianism, where hate speech provisions can be used to silence growing internal dissent with government policies and delivery. In fact, the censoring of Malema paves the way for more authentic spokespeople of black frustration to be censored.

In order to recognise the growing trend towards political censorship, it is necessary to understand the history of hate speech prohibition in South Africa.

For speech to qualify as hate speech, it should contain three elements. Firstly, it must advocate hatred. Secondly, this hatred must be on the basis of one of the four characteristics: race, gender, ethnicity or religion. Thirdly it must constitute incitement to cause harm.

In 2002, the SAHRC found that the chanting of ‘Kill the Boer, kill the farmer’ at former ANC Youth League leader Peter Mokaba’s funeral did not constitute hate speech. In a discussion document on freedom of expression, they made reference to the then-President Thabo Mbeki’s approach to the song, which was to denounce it as inappropriate in a democracy, and rather to use moral and political suasion to discourage its singing rather than arguing for censorship.

On appeal, the SAHRC did an about-turn, and found the song to be hate speech as it “(harmed) the sense of well being, (contributed) directly to a feeling of marginalisation, and adversely (affected) the dignity of Afrikaners.”

On the surface of things, the song seemed to contain all three elements of hate speech. However, much turns on how the terms ‘incitement’ and ‘harm’ are defined. Incitement involves an intention to instigate someone to commit an offence, even if the offence is not actually committed. It must also be shown that the speech is likely to lead to the harm being called for.

In spite of its deeply unpalatable contents, there is a broader public interest in resisting the banning of the song. Taking the song too literally is problematic. This and other songs came out of resistance to oppression under apartheid, when the term ‘Boer’ was used to refer to the system of apartheid. These songs could be understood as mobilising tools against apartheid, a call to kill the system, rather than an incitement to kill white people as such. The fact that the party that gave birth to the song - namely the ANC – is non-racial supports this interpretation.

In post-apartheid South Africa, the face of poverty is still overwhelmingly black, and the face of privilege white, so it should surprise no one that these songs continue to be sung. As poet Mphutlane wa Bofela has pointed out, new and more appropriate struggle songs are needed to capture the contradictions of the moment. But this evolution should be organic, and cannot be legislated into being.

Furthermore, many people down the years have sung these songs, including after the 1994 transition to democracy, but there is no evidence that they have made people rush out and murder white people, then or now. So, the argument that ‘Kill/shoot the boer’ constitutes incitement to cause harm is speculative.

In its appeal judgement, the SAHRC expanded the definition of hate speech significantly by arguing that the concept ‘harm’ must be given a broader meaning than physical harm, and must include psychological and emotional harm as well.

The difficulty with this argument is that it becomes very difficult to measure emotional or psychological harm.

Advocates Gilbert Marcus and Derek Spitz have argued that the hate speech clause should be interpreted as narrowly as possible, which means that harm should be limited to physical harm only; allegations of psychological or emotional harm should be dealt with through a limitations enquiry, using the strict test laid out in constitution’s limitation’s clause. They made this argument as they recognised the dangers of speech not receiving constitutional protection. It means that Parliament is granted immunity in how it handles hate speech, without the courts being able to review its conduct, which makes it very easy for government to abuse hate speech legislation to silence its critics. The judgement ignored this warning, and broadened the definition anyway.

Also, it is doubtful that the hate speech clause targeted speech that could be considered harmful per se. Rather the intention was to focus on speech that encourages others to cause harm. The judgement ignored this important point.

The Broadcast Complaints Commission of South Africa (BCCSA) has also stretched the definition of hate speech like an elastic band. Its ruling on Mbongeni Ngema’s song ‘Amandiya’ argued that the song promoted hate of Indian people and incited fear amongst Indians for their own safety. Incitement to cause harm was not proved.

Since then, Wits University law professor, Victoria Bronstein, has noted a tendency on the part of the BCCSA to conflate harmful speech with hurtful speech. Also, in their judgements, the speaker’s intentions have became increasingly irrelevant and the targeted groups did not even need to feel threatened for speech to fall foul of the Commission's code.

Matters have been made much worse by the Equality Act of 2000, which prohibits hurtful speech, not just harmful speech. Incitement to cause harm does not even need to be proved. The Act does not even require an intention on the part of the speaker to engage in hate speech; also, it proscribes public and private speech, which is downright sinister.

In March this year, this Act was used to by the Equality Court to rule that Malema had used hate speech relating to comments about the woman who laid a charge of rape against President Jacob Zuma. But this judgement was made on the basis of a desperately flawed Act.

The Film and Publications Amendment Act also broadens the definition of hate speech beyond what is provided for in the constitution, although it was narrowed somewhat after media objections.

South Africans are lapsing into a dangerously lazy habit of calling speech they feel offended by as ‘hate speech’, and the ever-expanding definition of hate speech from government, judicial and quasi-judicial bodies is feeding this national obsession.

Then there are the ill-informed statements by political leaders. Mosiuoa Lekota has warned that Malema’s chants are dangerous, and has drawn parallels between his utterances and the Rwandan genocide, where hate speech against the Tutsi minority fomented the mass killings. The comparison demonstrates an ignorance of the Rwandan tragedy's causes in 1994, and feeds into what Mahmood Mamdani has referred to as the misplaced “spectre of white genocide.”

In Rwanda, the branding of the Tutsi as an inferior race, or an ‘other’, became government policy, whereas the same cannot be said for whites in South Africa. Furthermore, the media were used by the Hutu-led government to pinpoint the targets for attack and direct the killings, whereas 'Kill the Boer' is far too unspecific to justify such a comparison.

What these recent events underline is the fact that South Africa has not dealt with the question of national unity adequately, and now the problem is coming back to bite us in the form of increasingly angry speech.

We may be reluctant to defend the space of unsavoury characters like Malema and Ngema to spew their nonsense, and understandably so. But if the space narrows for them, it narrows for everyone, including for those who most need to be heard if a more just society is to be achieved.

Recently, South Africa surpassed Brazil as the most unequal country in the world. As Neville Alexander has observed, the nation must be built on all levels of the social formation, including the economy. As a country, we need to deal with the unfinished business of building a nation on all these levels, rather than banning the speech that suggests that our nationhood has, in fact, been declared prematurely.

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