Malema's rights being imposed? I think not

11:34 AM / Posted by Daniel C /

With regards to the High Court’s decision to interdict ANCYL leader Julius Malema from singing his highly controversial struggle song “Kill, the Boer, Kill the Farmer”, I have played witness to a multitude of different reactions. An outcry by individuals for the need to protect the ANCYL leader’s right to freedom of speech has been of particular interest to me.

The unconstitutionality of the court’s decision is apparent when we delve into the complexities surrounding the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) versus the Constitution’s definitions of hate speech. The ruling was based on the Equality Act’s perception that hate speech may be defined in terms of its potential to incite harm rather than explicit intent (which is outlined in s 16(2)(c) of the Constitution). This is in itself problematic since, although Malema is overstepping the mark in terms of what the Equality Act outlines as an intention to be hurtful (s 10(1)), his constitutional rights are being infringed. By singing the song, Malema has not explicitly gone against anything that the Constitution defines as hate speech or advocacy of hatred. Robert Brand, in his blog entitled “Low Opinions” shares this contention quite adamantly, yet I choose to reject it.

While I cannot deny the problems that exist when comparing the Equality Act and the Constitution, I feel that they are irrelevant at this stage. Firstly we need to look at the context in which Malema’s actions have taken place. Prominent white supremacist and leader of the AWB, Eugene Terre Blanche was murdered on his farm recently, and before I continue I want to stress that I am by no means drawing an explicit connection between the death of Terre Blanche and the struggle songs sung by Malema. The fact is, as a result of Terre Blanche’s death, the country has been shaken up into a situation containing obvious racial tension. This is not to say that all whites and all blacks have a newfound hate for each other, but rather, minority groups, such as the AWB for instance, have been placed in a position where they undoubtedly feel threatened. Regardless of who the culprits were, if a leader is murdered, the group will feel threatened. Now, in light of Malema’s recent struggle songs, the issue becomes more sensitive and potentially explosive. The words in the struggle songs are directly pertinent to white farmers and therefore the vast majority of AWB supporters, even though Malema’s intentions are irrelevant in this sense. But, following on from Malema’s recent trips to Zimbabwe, where he stirred up Zanu-PF supporters with these struggle songs, the death of a leader by two workers who have pleaded guilty, and the subsequent praise that many have placed upon the perpetrators, it is not irrational to conceive of a situation in which AWB supporters and other white farmers feel threatened to the point of possible retaliation.

So this is the context in which we may view the singing of the struggle songs. In terms of the Constitution Malema is perfectly within his limitations to exercise his right to freedom of expression, but we need to look at the bigger picture. Section 36 of the Constitution outlines the circumstances in which a right may be limited. This section states that a right may be limited if it is justifiable, and part of this clause includes the need to look at the “importance of the purpose of the limitation”. I feel that given the circumstances that we find ourselves in, and the rational possibility of an uprising following the death of Terre Blanche, Malema’s right may be justifiably limited. The fact that the Equality Act provides limitations on freedom of expression that arguably infringe upon those set out by the constitution, and subsequently create a whole new sphere of contradictions and problems is, in this case, irrelevant. So, although in this instance section 36 of the Constitution plays a part in justifying what is offered by the Equality Act, it may also be seen as a coincidence. What is really needed is a revisiting of both the Equality Act and the Constitution to make them more mutually compatible.

I feel that given the circumstances, the court’s decision to interdict Malema from singing his struggle songs is perfectly rational, but not in terms of the Equality Act, it is merely constitutional.

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