Op-Ed: Insult laws vs. freedom of speech

National Secretary of the Young Communist League of South Africa (YCL), member of the Central Committee of the South African Communist Party (SACP), and Deputy Minister in the Presidency, Buti Manamela, has accused the Public Protector, Thuli Madonsela, of being arrogant and undermining Parliamentary processes.

This follows Deputy Defence Minister and Chairperson of Umkhonto we Sizwe Military Veterans, Kebby Maphatsoe, accusing Madonsela of being a Central Investigations Agency (CIA) spy.

Despite his withdrawal of the statement he made a week ago, he reiterated his allegations this past weekend, at the 5^th MKMVA Provincial Conference in Irene on 14 September 2014. He said: “The CIA wants its own CEO in SA, and they are using some institutions, including Chapter 9 institutions, to pursue their agenda, and I said Thuli must tell us who her handler is… We decided in consultation with the ANC to withdraw the statement.”

These attacks coincide with a reported attack on Professor Shadrack Gutto by the same Kebby Maphatsoe, who has labelled Gutto a “counter-revolutionary”. Maphatsoe accused Gutto of consistently attacking President Jacob Zuma and the ANC.

“There is this Professor Gutto, who is not South African. He is a counter-revolutionary, that professor. And it’s high time we talk about him. He thinks he is better placed to analyse our situation in South Africa… Comrades, if we were very bad, we would have said, ‘You are not a South African’. He thinks he is special. He must go back to his country to analyse like he does here; they will arrest him and (make him) face prison.

“What does he know about the struggle of our country? Prof Gutto, leave us in our beautiful South Africa,” he said.

Maphatsoe, however, was adamant that he was not being xenophobic.

Attacks on the person and the office of the Public Protector are clearly in contravention of section 9 of the Public Protector Act, which says that no person shall insult the Public Protector or the Deputy Public Protector. In addition, they may not do anything in relation to an investigation which would have constituted contempt of court if the investigation had been proceeding in a court of law.

The attack on Professor Gutto amounts to hate speech, which is defined in the Promotion of Equality and Prevention of Unfair Discrimination Act as publishing, propagating, advocating or communicating words based on ethnic or national origin against any person, which could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm or promote or propagate hatred.

So should criminal charges be laid?

In the case of criminal defamation, the Supreme Court of Appeal has found that criminalising defamation is indeed congruent with our Constitution: "That the offence was reasonably required to protect people's reputations and that it did not go further than was necessary to accomplish that objective." Commenting that an injury to one's reputation "may have more serious and lasting effects than a physical assault", the court saw nothing excessive in having one injury result in both a compensation claim and a criminal penalty.

It concluded: "To expose a person to a criminal conviction if it is proved beyond reasonable doubt, not only that he acted unlawfully, but also that he knew that he was acting unlawfully, constitutes a reasonable and not too drastic limitation on the right to freedom of expression."

So there is no doubt that charges could be laid in both cases. But just because you can, that doesn’t mean you should. Criminal law sanctions for freedom of speech issues are controversial, to say the least. For one, the African Commission on Human and Peoples’ Rights, meeting at its 48th Ordinary Session, held in Banjul, The Gambia in 2010, called on State Parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the Declaration, and other regional and international instruments.

We are also mindful of the judicialisation of politics. Judge Jody Kollapen, a former SAHRC commissioner, warned at a recent conference at Wits on public interest law, “Never do by public interest litigation what you can do by political mobilisation.” We assume by analogy, we must be careful of always trying to get judges to get our politicians to stay within the law, or at least do so as a first resort.

Given the circumstances, anyone with an inclination to do so will be justified to approach their nearest police station to lay charges, but we would not advise it yet. However, the question of politics is a different matter. Politicians, and civil society, must call on the state to respect the rule of law. If that fails, the courts must again be tasked with holding the line on the rule of law, with the concomitant, and dangerous, judicialisation of politics, and politicisation of the judiciary.DM

Mukelani Dimba is Executive Director of the Open Democracy Advice Centre, and Alison Tilley is Head of Advocacy at the Open Democracy Advice Centre.

Photo by Reuters.