Freedom of expression
I recently read an article by Professor Pierre de Vos on the recent censoring of EFF leader Julius Malema by the presiding officer at a joint sitting of Parliament. I do understand the basis of the article, and surely, Prof is again on the money, but he also loses sight of another critical issue.
Section 16 of the Constitution deals with freedom of expression. And Prof takes into account the first provision of Section 16, and yet, the important part lies in Section 16 (2). What Malema said, could incite violence against the ANC and the SAPS, as people might easily believe it to be true that the ANC instructed the police to open fire on the miners at Marikana, and decide to "take action" against the ANC and the police.
Members of Parliament do not have freedom of expression; for them it is called Parliamentary privilege. But just as in the case of freedom of speech, one would expect any statement or pronouncement under Parliamentary privilege to be considerate and in line with Section 16 (2).
But just how far can we allow freedom of expression to go? When does freedom of expression becomes a problem?
I'm sure that if someone states that Al-Qaeda is the future, many people would have a problem with it. But isn't that simply freedom of expression? In the movie "The American President", President Andrew Shepherd make the following statement: "America isn't easy. America is advanced citizenship. You gotta want it bad, 'cause it's gonna put up a fight. It's gonna say "You want free speech? Let's see you acknowledge a man whose words make your blood boil, who's standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can't just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest."
That is always my problem with "proponents" of free speech. Its only right if you say what I think is right.
In 2012, Nkosi Patekile Holomisa was ostracised for expressing his opinion on homosexuality. The chief went against the stream, expressing a view that many didn't like. Did this make him wrong, or anti-Constitution? Isn't part of freedom of expression also having the right to express an opinion that is contrary to yours?
In fact, isn't it unconstitutional to be intolerant of others, simply because they do not share your opinion on things, and express themselves in that way?
More recently, Chief Justice Mogoeng Mogoeng came under fire for saying that religion might offer answers for some of the problems we face in the country. Quite correct, as a secular state, we need to insulate the State from religious influence. But there are some religious principles that are universal, and which we, as a people, practise anyway.
I didn't hear the Chief Justice saying that he would be advocating for the inclusion of religion into law. All he did was to express his opinion that we might want to look in that direction for possible solutions. And even as a Muslim, I understand him using Christianity as the basis for his speech, as he is a Christian.
But what I found very odd and worrying, is that some of the groups that criticised him, was also very vocal in speaking out against the decline of religion in schools!
We need to find a balance in our understanding of freedom of expression. Is it right for a newspaper, for instance, to publish a damning story about someone, based on unnamed sources? And when the contrary is proven, the ombudsman give them a light slap on the wrist and make them write an apology. But the damage had been done already, and cannot be undone with an apology.
Although there were several cases before our courts, including the Constitutional Court regarding freedom of expression, there is, in my opinion, one Constitutional provision that few seem to consider: the inclusion of the Table of Non-Derogable Rights at the end of Chapter 2. "Human dignity" is stated as non-derogable in its entirety, but interestingly enough, the table does not mention "freedom of expression". This means that freedom of expression is subject to it not subjugating human dignity, being singular, or the right of a group of people.
Interesting!
MOEGAMAT SHAREEF BLANKENBERG
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