SAHRC errs in hate speech ruling against COSATU's Bongani Masuku
The Congress of South African Trade Unions (COSATU) and the Palestine
Solidarity Movement in South Africa are shocked and appalled by the decision of the South African Human Rights Commission (SAHRC), which found that COSATU's International Relations Secretary, Bongani Masuku, is guilty of hate speech and called on him to apologise to the South African Jewish Board of Deputies (SAJBD).
In a submission to the SAHRC, the SAJBD had accused Bongani of hate speech for comments he made during a lecture at the University of the Witwatersrand, hosted by the Palestine Solidarity Committee and the Young Communist League, as well as comments he had made on a Zionist blog and in a personal email to a Zionist detractor.
As Bongani's response to the SAJBD complaint illustrates, none of his comments can be regarded as hate speech in terms of the South African Constitution. Furthermore, his comments, in the main, referred to South Africans who supported the illegal Israeli military occupation - irrespective of their religious or ethnic backgrounds.
These comments were certainly a trenchant critique of Israel and its apologists and supporters in South Africa, but were not directed at the Jewish community or any other ethnic group.
Section 16 of the South African Constitution, the section on Freedom of Expression, states:
(1) Everyone has the right to freedom of expression, which includes-
§ freedom of the press and other media;
§ freedom to receive or impart information or ideas;
§ freedom of artistic creativity; and
§ academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
§ propaganda for war;
§ incitement of imminent violence; or
§ advocacy of hatred that is based on race, ethnicity, gender or
§ religion, and that constitutes incitement to cause harm.
None of Bongani's statements can be regarded as being ‘advocacy of hatred' based on ‘race, ethnicity, gender or religion'. He did not refer to Jews, as is being alleged. The gleeful and smug comment by the SAJBD (see here), following the SAHRC decision, is simply untrue. Their claim that Bongani's comments ‘advocate and imply that the Jewish and Israeli community are to be despised, scorned, ridiculed and thus subjecting them to ill-treatment on the basis of their religious affiliation' is a pack of lies.
It is through such lies and intimidation that the SAJBD, the South African Zionist Federation, and other apologists of Israel have sought to chill free expression in South Africa and to prevent any critique of Israeli war crimes. Their repeated accusations of ‘hate speech' against criticisms of Israel have become wasteful of public resources, and trivialise the very serious charge of ‘hate speech'.
Furthermore, their constant, frivolous, and false accusations of ‘anti-Semitism' against critics of the state of Israel and the calumny of ‘self-hating Jews' against those Jews who support the just struggle of the Palestinian people against racism and oppression is an attempt to silence and intimidate those who, using their own experience of racism and oppression in Apartheid South Africa, feel they can contribute to a just resolution of the problems in the Middle East.
Indeed, we believe that SAJBD's statement during the Gaza massacre of December 2008-January 2009, wherein it defended all Israeli actions in that massacre - including the use of white phosphorous against civilians, the bombing of United Nations buildings, the murder of civilians, the bombing of civilian infrastructure such as schools, hospitals and places of worship - violates Section 16 of the Constitution in attempting to incite South Africans (especially South African Jews) to violence against Palestinians, and in being clear and obvious propaganda for war.
We are shocked that the SAHRC, after receiving a written complaint and a written response to that complaint, saw fit to make such a finding - with the potential weighty precedent that it can set - without even entertaining a hearing on this matter. We do not believe this constitutes due process and believe it to be unprocedural in terms of the manner in which the Commission should operate and in terms of its mandate to ensure the realisation of Constitutional rights - including the right to free expression. We are also surprised that the Commission made such a decision which blatantly contradicts previous rulings it has made on similar issues.
Bongani, with the support of COSATU and various solidarity organisations in South Africa, will study the SAHRC ruling and decide whether there are grounds for an appeal. We shall defend Bongani's right to free expression - as guaranteed by our Constitution - in the Equality Court and in any other court in South Africa.
COSATU also condemns attempts to silence Comrade Bongani Masuku, who is attending a Palestine Solidarity Conference in London to take forward the Boycott, Divestment, and Sanctions (BDS) campaign. Pro-Israeli elements are trying to get his invitation withdrawn, on the basis of the SAHRC ruling, which was issued the day before the event started.
COSATU is consulting its lawyers on the SAHRC ruling and how it can be dealt with.
Statement issued by the Palestine Solidarity Committee and the Congress of South African Trade Unions, December 4 2009
Click here to sign up to receive our free daily headline email newsletter