The recent decision taken by President Jacob Zuma to sack Finance Minister Pravin Gordhan and reshuffle cabinet has certainly fuelled the already raging fire of dissent felt by many South African citizens alike. The downgrade of the Rand to junk status was nothing if not inevitable, once our last pillar of hope had effectively been sacked for remaining faithful to the Constitution.
When South Africans took to the streets on the 7th and 12th April respectively, it wasn't difficult to discern the discontent levelled towards Mr Zuma, what with the subtle banners of protest to the effect of "Zuma jou ma se *, amongst other less eloquent one-liners.
For those members of the public who, like me, are weary of branding themselves with these subtle incantations of disproval, a helpful place to start is that ever sighted yet often side-lined scripture.... the Constitution. The freedom of expression provisions contained in section 16 of the Constitution restrict freedom of speech only in so far as that freedom doesn't extend to inciting harm coupled with advocating hatred based on race, ethnicity, gender or religion.
I'm no expert when it comes to interpreting semantics but I believe the above slur could be linked to the prohibited ground of gender. Despite this, I think it would be a stretch to say that this slur advocates hatred based on gender and incites violence. For our man in the street that chose to assert his opinion in this subtle fashion on the 7th of April, this knowledge would be well received.
However, the slur in question also needs to pass muster under the hate speech provisions of the Equality Act. Section 10 of the Act restricts freedom of speech to such a degree that speech based on one of the prohibited grounds that is merely hurtful, constitutes hate speech. If we apply this to our present example it would appear that such a slur would indeed be hurtful, not least to women.
Now, although I would agree that such slurs linked to gender are of seriously poor taste, there are many examples of more justifiable utterances of protest that perhaps need to be voiced if we are too fight corruption and injustice. However, the chances of that utterance being hurtful on a listed ground is high. For example if we are to speak out about race or religious inequality, the chances are this is going to be hurtful to opposing races or religious groups and may end up being contested as hate speech.
As a result, section 10 of the Equality Act has attracted much criticism. The argument is that broadening the definition of hate speech from inciting harm and advocating hatred to speech that is merely hurtful, erodes too deeply into freedom of speech, the tool we use to call crooks to account. If we are to live in a functioning democracy the question we should ask ourselves this: In a world saturated by dishonesty and corruption how do we fight the good fight if not to express disdain and contempt for the authors of our demise? This is made especially difficult when legislation restricts us from doing so. Perhaps not only the cabinet is in need of a reshuffle, perhaps the Equality Act needs one too?
See s16 of the Constitution of the Republic of South Africa 1996, for provisions on freedom of expression.
See s9 of the Constitution of the Republic of South Africa 1996, for list of prohibited grounds
See s10 of The Promotion of Equality and Unfair Discrimination Act for the provision on hate speech
Originally published June 13th, 2017
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