Freedom of expression in South Africa

Is there a limit to freedom of expression?

Interventions in ”Hate Speech” in South Africa can lead to censorship

By Thomas Tufte

”We will protest against any infringement of the freedom-of-expression clause in the constitution”, says Raymond Louw, vice-president of the South African organisation Freedom of Expression Institute (FXI).

The reason behind his statements is the preparation of a bill, which is being debated in the Parliament of South Africa these months.

The bill, ”Promotion of Equality and to the Prevention of Unfair Discrimination Bill”, will among other areas be strict on racism in the media. By way of example, ”hurtful” and ”abusive” words such as kaffir, boer, and coolie will be prohibited. The bill is to be passed before March 2000.

FXI is not just any organisation. Together with a handful of other organisations, FXI is a self-proclaimed guardian of freedom of expression and of media pluralism in South Africa.

FXI has received Danish support ever since the organisation was founded in 1994 as an amalgamation of three former anti-apartheid organisations. To begin with, support was received from the Danish Embassy in Pretoria. Since 1997, the Danish NGO Ibis has assisted FXI in a legal co-operation with two other organisations in the region.

The debate flared up with the newspaper cover story of The Star of 7 October 1999.

”Law to ban hate speech, slurs”, the headline read. According to the law's critics, fronted by FXI, a number of problems arise when ensuring the freedom of expression.

In order to shed more light on the case, ”Udvikling”, (Development), went to see FXI general secretary Laura Pollecut at her office in Johannesburg. Ms Pollecut is a veteran when it comes to the South African anti-apartheid fight. For many years she was a member of the women's organisation Black Sash. Since 1997 she has been the leader of the FXI.

The conversation with Ms. Pollecut revealed with clarity the difficulty of fighting for freedom of expression in a country as South Africa, burdened by the conflicts of the past.

Back to censorship

The South African Human Rights Commission, SAHRC, has laid the ground for the debated law. One aspect of the preparations has been to conduct a large investigation of racism in the media.

However, Laura Pollecut is concerned that a new form of censorship is under way in South Africa. Should the law be passed with the current wording, the Human Rights Commission will have widespread powers to follow up on suspicions of racism in the media.

-The mandate of the Human Rights Commission gives it the powers of authority to searches, confiscation, arrests, and writs. Having made it clear that they will not hesitate to make use of these powers, we are rather worried within the FXI”.

-I claim that the powers of the Human Rights Commission were meant for much more serious civilian offences. In this connection, they can really have a censuring effect”.

Spotlight on racism

On the one hand open discrimination is against the new constitution of the country, but on the other hand a new prohibition policy is to be avoided.

-The racism appearing in newspapers is often of a very indirect kind, Pollecut explains. -It is indicated by the priorities given to news stories. Recently the murder of a white family was described in great detail in the Sunday Times, featuring a large and explicit picture, all the while a massacre of a group of black people in a township was only mentioned in three lines in the corner of the opposite page.

This indirect racism makes it a difficult issue. The case would be more simple, if the racism was more aggressive. However, the indirect racism is the most propagated and the most difficult kind to dispatch. This makes it even more important to Ms Pollecut to render this racism visible.

-It makes it easier to challenge. If it is prohibited, it is only suppressed. This is our stand on all kinds of hate speech, the general secretary stresses. The way forward is therefore not prohibition, but openness and visibility.

Divided opinions

In South Africa, the opinions are divided on this issue. On one side stands the Human Rights Commission, the Ministry of Justice, and South African non-government organisations, such as Black Lawyers Association and the National Association of Black Accountants. They all wish to prohibit every kind of racist and sexist speech, as well as all other forms of discriminatory or hateful speech.

The investigation into racism in the media conducted by the Human Rights Commission was about a year ago initiated by a complaint lodged by the two last-mentioned organisations. These organisations complained about discriminating news coverage by certain newspapers.

On the other side of the divide stands the FXI and a number of other NGOs, warning that a limitation of freedom of expression is unconstitutional.

Gavin Stewart is among the supporters of the FXI. He is a prominent editor of the East London newspaper Daily Dispatch, as well as for many years having been the head of the Department of Journalism at the highly esteemed Rhodes University. Mr Stewart criticises the debate for being too rigid and he warns that the censorship practise of apartheid could be repeated, only with opposite signs:

The terms “racism” and “racist” appearing in political discussions of the new South Africa make the work of the Human Rights Commission difficult, since these terms seem to have taken over from the terms “communism” and “communist” of apartheid South Africa.

The words are mute weapons used to silence opponents and paralyse any rational debate”, Gavin Stewart reasons.

This is just one example of the many highly principal discussions that are part of the rebuilding of a democratic South Africa. The aim of the FXI is to ensure freedom and independence of the media, even if it, in this case, means to let unfair discriminatory action take place.

Legal defence supported by fund

One of the FXI's main activities is the fund for the defence of freedom of expression, FXDF. Through the fund, the FXI support individuals, organisations, and media wishing to take legal action. Patricia de Lille, MP, is one of the individuals who has received support from the FXI. A provisional Commission of Parliament found the MP guilty of having made improper remarks in Parliament.

On this basis, she was quarantined from Parliament and directed to give an apology in writing. With the support of the FXI, the very commented case was invalidated.

The judgement against Ms de Lille was found to be unconstitutional and the FXI won.

Apart from the legal work in connection with the support from the fund, the FXI collects documentation primarily from rulings in cases about freedom of expression.

-We collect rulings of both a positive and a negative character”, Ms Pollecut explains. From this documentation gradually grows a report on South Africa's movements back and forth. Movements of the difficult art of protecting a constitutional and a UN sanctioned right.

Co-operation in the region

Since the FXI is one of the strong media organisations in the south of Africa, it also happens that the FXI defence fund provides legal assistance to cases in neighbouring countries.

The close regional co-operation is evident in the network Media Law Briefing. This Ibis supported network is a co-operation between the FXI and the organisations Article 19 and MISA, the Media Institute of the Southern Africa.

Laura Pollecut explains: ”This legal network covers all of the SADC region. The reason for supporting each other is that in all countries of the Southern Africa attempts are being made to restrain the media.

Susan O'Leary, representing Ibis in South Africa, stresses the importance of this specific, regional co-operation.

”We view the work they do as a way of creating a framework. A legal framework has to be made to ensure that information gets out. There has to be some organisations aware of this particular aspect, especially in this region. This is why, we support the network Media Law Briefing”.

Ms O'Leary continues: ”Regional work is essential. It should be supported, since some countries' programme initiatives have lead to experiences that other countries in the region need to learn from”.

Public debate

Despite the constitutional guarantee, the limits of freedom of expression will always be a controversial issue.

The issues, now and in the future, are: can freedom of expression, a basic human right, be subject to abuse? If so, in which ways can it be abused? Is it possible, at all, to make limits for such a basic human right?

The discussions of the debated bill reflect tensions that seem to be an unavoidable part of the development process in South Africa.

Laura Pollecut admits that the FXI might have acted a little too late this time. A broad public discussion of the current bill is an important part of the democratic process in South Africa. She hopes that the case will be strengthened now that the matter has received the attention of the media.

-We probably should have been more active earlier in the course of events. However, the press has finally become interested in the case, which is good news”, says a confident Laura Pollecut.

Obviously, a part of the fight for freedom of expression in the media should also take place in – well - the media.

Hate Speech

Over recent years, the concept of ”Hate Speech” has particularly become known from hateful accusations appearing in media during war and conflicts in countries such as Rwanda and Burundi, and on the Balkans. Especially, radio transmissions, ”Hate Radios”, have introduced the concept.

”Radio Télévision Libre des Milles Collines” (RTLM) was one of the most well known and discussed radio stations of this kind. During the crisis in Rwanda, the hateful and vindictive opinions of this Hutu controlled radio station incited to the extermination of Tutsies. Subsequently, the international community has strongly condemned the RTLM. In 1996 in Burundi a similar initiative was known as “Radio Democracy”.

”Hate Speech” is less dramatic in a South African context and this country is not in any similar state of war or crisis. Nevertheless, ”Hate Speech” is used in connection with the direct or indirect discrimination carried out by certain South African media.

FXI Main Activities

The activities of the Freedom of Expression Institute of 1994 are concentrated on seven principles and thematic areas:

• Free and independent media
• Freedom of expression in daily media work
• Work for increased media pluralism
• Fight for increased access to information
• Broadcasting politics
• Work for the discontinuation of censorship
• Organisation of the people of this sector
  

Since the founding in 1994, FXI has received financial support from Denmark (almost DKK 2.5 million). The NGO Ibis has also granted DKK 1 million to FXI.

More information

FXI

Website

Phone: +2711-4038403

Fax: +27 11-4038309

Article 19

Click here to view

e-mail: info2article19.org.za

Phone: +27 11-4031488

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Above document provided as background for The Drum Beat #57

DANIDA, the Danish International Development Agency, supports communication for development. There is currently a policy revision taking place. These articles and activities indicate pathways for future activities relatingto communication for development. Not all activities are supported by DANIDA.

Inge Estvad (journalist, est@image.dk), Finn Rasmussen (Communication Adviser, IBIS Ecuador, frasmussen@andinanet.net) and Thomas Tufte, Ph.D. (Professor, Roskilde University ttufte@ruc.dk) gathered the material that provides comprehensive insight into the policies and programmes selected.