23 April 1997

Dear Dr Pityana

The FXI notes the complaint that has been lodged with the Human Rights Commission by the National Party following statements made by three politicians about the leader of the NP, Mr FW De Klerk.

According to media reports, the commission is being asked to rule that the utterances of the three politicians transgressed the protection afforded by the constitutional right to freedom of expression. The commission reportedly is also being asked to consider setting down guidelines for public statements by public officials.

The FXI is fully aware and respects the efforts by the Human Rights Commission to tackle racial discrimination in this country. The FXI is also aware of the fact that the constitution does not provide protection for certain forms of speech which advocate hatred "based on race, ethnicity, gender or religion and that constitutes incitement to cause harm".

The FXI has consistently opposed this provision in the constitution since we believe that curbs on speech are not appropriate ways of addressing problems such as racial discrimination. We believe too that, in the context of South Africa, these provisions can have a chilling effect on freedom of expression and particularly political expression since, given the legacies of our past, this can involve hate speech based especially on race and ethnicity.

The FXI believes that the only way for a society to purge itself of problems such as racism is to allow for even reprehensible forms of speech so that they can be confronted openly and condemned. The suppression of racist speech will only serve to suppress the problem of racism, but will not remove it. Racist ideas and the hatred stemming from this will be driven underground where it may continue to thrive unchallenged. Open dialogue, by contrast, poses the opportunity for critical analysis and understanding of the issues involved. With regard to racist acts of violence, we believe this to be no different from other acts of violence, the perpetrators of which we would expect to face the full might of the law.

Freedom of speech has been recognised as a fundamental human right. This right is a holistic right that cannot be divided into component parts of "good" or "bad" speech. To allow for this right to be divided up like this, with a view to curbing certain forms of speech, is an affront to freedom of speech as a whole. Such a measure will also foster a dangerous expectation in society for courts of law to censor or curb speech which some people may find offensive. Indeed, for freedom of speech to have any meaning in a democracy it must of necessity protect reprehensible forms of speech since polite or complimentary forms of speech are never in danger of being curbed.

With regard to the specific complaint lodged by the NP, the FXI is concerned that the commission is being asked to make recommendations on the "public utterances of public officials". While the FXI accepts that not all public officials are politicians, and vice versa, we feel a recommendation such as that proposed by the NP will in fact affect politicians who occupy public office. At the same time it should be borne in mind that the three people against whom the NP had lodged its complaint are all politicians.

The FXI  believes that politicians, including those who hold public office, should enjoy great freedom of speech protection since they have a duty to articulate the views of their constituents, no matter how reprehensible these views may appear to some. Furthermore, by placing limits on the freedom of expression rights of politicians the commission may curb their desire to express particular views which they may hold. This will be a disservice to the public since it will rob them of an opportunity to correctly evaluate politicians, particularly those who occupy public office. The public should be fully aware of the opinions of politicians and no measures should be put in place that will prevent politicians from openly and honestly expressing their views. It is up to the public to hold politicians, including those who hold public office, accountable for their views and utterances and their should be no prior restraint on their freedom of expression rights.

The FXI urges the Human Rights Commission to approach the complaint of the NP with a view to protecting the fundamental rights of freedom of speech and expression.

The FXI calls on the commission to reject any attempt to place curbs on the public utterances of public officials and politicians.

The FXI further calls on the commission to reject curbs on speech as a means of addressing problems of racial discrimination.
 

Yours faithfully
 
 

Raymond Louw
Chairperson: FXI Executive Committee