Why free speech should be a priority

Posted on December 10, 2016

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This week ends with the 20th anniversary (December 10) of the adoption of South Africa’s Bill of Rights and justly lauded Constitution. But it comes at a time of considerable political and economic turmoil, nationally and globally, and when some of the rightly praised clauses of the Bill of Rights are under threat.

Trade unions should be very concerned about this, although few, if any, of the South African unions seem aware. The most imminent threat comes in a legislative mouthful, The Prevention and Combating of Hate Crimes and Hate Speech Bill.

This at a time when, as the reputable Reporters Without Borders (RSF) organisation notes: “There is a deep and disturbing decline in media freedom.” And such a decline has the knock-on effect of self censorship that undermines whatever freedoms are enjoyed in parliamentary democracies.

Unlike China, Syria and Turkey, which lead the way in jailing journalists, most such democracies rely on laws, supposedly designed for the public good, to curtail free speech. Such measures tend to result in charges such as “insulting the president” or “exposing state secrets” and result in prison terms for journalists merely doing their jobs.

A classic case this year concerns Can Dundar and Erdem Gul, an editor and senior journalist in Turkey who exposed the fact that their government was secretly shipping arms into Syria, so fuelling the conflict there. They were detained for months and finally sentenced to five years in jail.

But it is not just journalists who are the targets of those opposing the constitutional right to free speech and opinion. This applies right across the board. And without journalists acting as the eyes and ears of the public, citizens are deprived of information that is often essential to the wellbeing of society.

Hate speech is one such restriction. Take a recent case in France where a Christian Democratic politician was fined for hate speech when she referred, using the Biblical term from the Book of Leviticus, to homosexuality as “an abomination”. I find that politician’s attitude deeply offensive, but, as the South African Bill of Rights states, free speech is guaranteed, not the right not to be offended.

In fact, we in South Africa have the constitutional right to express ourselves as we wish, provided that we don’t make propaganda for war, incite “imminent violence” or advocate hatred based on race, ethnicity, gender or religion, but only when this “constitutes incitement to cause harm”.

This is a sensible approach that enables the public expression of opinions, but not anything that “unlawfully, intentionally and seriously impairs the dignity of another”. This quotation defines the offence of crimen injuria that already exists on the statute book.

There is, of course, the adage: “Sticks and stones may break my bones, but names will never hurt me.” This is not strictly true. Words can hurt, especially when they are intended to harm the person they are directed at. However, censorship is a much greater danger — and to the public at large.

The “Hate Speech Bill” proposes fines or a prison sentence of three years for a first offence and ten years for a repeated offence. If it is passed into law it may be found to be unconstitutional and it certainly seems unnecessary, given existing legal provisions.

However, we are already on a slippery slope that began with a court ruling that singing the historic anti-apartheid song, Dubul’ ibhunu (Shoot the boer) is illegal. In context, iBunu (or iBulu) did not mean farmer (its literal translation), but the forces of apartheid, especially the police.

So if, as often occurs, a worker refers to a miserly boss as a “capitalist pig” will this constitutes hate speech that should face the force of the law? Or should it merely open a debate about exploitation?

And how about a union official in the wake of a fatal mine accident, who refers to the mine management as “killers”. Is this hate speech or merely the opening statement in a robust debate about mine safety?

History has shown that it is impossible to legislate against “bad thoughts” or to ban opinions. Punitive laws just intimidate and drive obnoxious notions underground where they can fester and multiply in secret. So let the racists, homophobes, sexists and assorted bigots have their say, subject to existing laws against incitement to violence. And then let them be confronted, named, shamed and, if necessary, shunned.

Above all, as 2017 looms, lets us pledge, wherever we are, to ensure that freedom of expression will continue to be a priority. It is one of the safeguards against encroaching tyranny.