HOT TOPIC: Hate speech and the land question
EFF leader Julius Malema, in addressing supporters in Newcastle last week, urged them to continue to occupy any land available as they were the rightful owners of the land.
In his inflammatory and controversial speech that was widely reported in the media, he declared, inter alia, “we are not calling for the slaughtering of white people, at least not yet”.
This outrageous statement has been universally condemned. The DA and the Freedom Front have reported this manifest expression of hate speech to the South African Human Rights Commission (SAHRC), according to TimesLIVE on November 8.
In this regard the F W de Klerk Foundation has requested an urgent meeting with the SAHRC. A prominent DA member of parliament, Phumzile van Damme, opined in this regard that “these comments violate the most fundamental principles of our hard-won constitutional democracy”. What is hate speech? In the wake of World War 2, a number of post-war human rights charters or instruments restricted the scope of freedom of expression by preventing the incitement of racial hatred. Legal restrictions on hate speech are also imposed in a number of democratic countries.
Hate speech can be defined as expressive conduct which insults a racial or ethnic group, whether by, for instance, suggesting inferiority or by effecting exclusion. The prohibition of such speech is provided for by section 16(2) of the constitution which qualifies section 16(1) providing for freedom of expression in general.
Section 16(2) states that section 16(1) does not extend to, inter alia, the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Two cumulative elements must therefore be present before an expression can be considered hate speech: the expression must constitute advocacy of race hatred on certain listed grounds and the advocacy must constitute incitement to cause harm.
An example of hate speech is found in the case of the Freedom Front v SAHRC, where a SAHRC appeal committee held that the slogan, “Kill the farmer, kill the boer”, did indeed constitute hate speech and was not protected. It declared that “calling for the killing of people because they belong to a particular community or race amounts to the advocacy of hatred, unless the context indicates otherwise”.
Malema’s statement, “we are not calling for the slaughtering of white people, at least not yet”, obviously amounts to the calling for the killing of people because they belong to a particular community or race. To establish his innocence, Malema would have to prove that the context indicates otherwise.
This will in the circumstances prove to be difficult. The qualification, “at least not yet”, will not provide an exculpation, because it clearly indicates that at some time in the future such a call will be made.
The apparent subtlety of the language may indeed exacerbate rather ameliorate the situation.
Prima facie therefore, the statement appears to constitute hate speech, bearing in mind that in the Freedom Front case, it was held that “harm” could not be confined to physical harm, but should also be taken to include psychological and emotional harm. It also appears to be a more serious manifestation of hate speech than Penny Sparrow’s appalling reference to black people on the beach at Scottburgh as “monkeys”.
In conclusion, regardless of the legality of Malema’s statement, it involves an abhorrent sentiment which deserves unqualified condemnation by all concerned, and it must of necessity do great harm to sound human and race relations in this country.
South Africa requires a rational and robust discourse on race and related issues such as land. In no way does Malema’s diatribe constitute in a meaningful way to such a discourse.
The EFF and Malema use a fascist strategy, language and disruptive behaviour in parliament to gain political publicity at all costs, regardless of the harm done to sound and harmonious race relations in the country.
In this regard a stand needs to be taken by civil society and other political parties as well as by the courts. Malema at the least needs to be severely reprimanded and sanctioned in no uncertain terms.