Weekly focus

Hate speech versus freedom of expression highlighted

The dispute between Cape Town based Radio 786 and the South African Jewish Board of Deputies which is now before the constitutional court has again highlighted the need for engagement on hate speech versus the freedom of expression. The matter has also raised the incompatibility of apartheid regimes’ laws on media and the country’s constitution.

The dispute relates to programme aired by radio station 786 in 1998, which dealt with Zionism and the State of Israel. It is alleged that Doctor Yaqub Zakie who was guest on the programme, raised question about the Holocaust. The South African Jewish Board of Deputies lodged a complaint against the content of the programme in terms of Clause 2(a) of the Code of Conduct for Broadcasters, with the Monitoring and Complaint Unit (MCU) of the then Independent Broadcast Authority. According to Clause 2(a), “Broadcasting licensees shall not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feeling of any section of the population.”

The IBA (now ICASA) in its position paper on revision of the IBA’s Code of Conduct for Broadcasters in April 1999, noted that Clause 2(a) which was extracted from the Broadcasting Act of 1974 - was at odds with the freedom of expression provisions in the Bill of Rights. The Authority also noted that even unpopular and offensive speech is protected and that any attempt to limit such speech carries also the potential to limit artistic creativity.

In term of the proposed new Code of Conduct submitted to the Parliament Communications Committee by the IBA after its 1999 inquiry, Radio 786 may not have been in dispute with the Jewish Board of deputies had Parliament taken the time to look at the proposed Code of Conduct.

On language, the IBA states that; “Offensive language, including profanity, blasphemy and other religiously insensitive material shall not be used in programmes especially designed for children.” The IBA’s emphasis is not on avoiding use of offensive language but on regarding the time it is used and audience (in this case not to be used in children programmes.)

Radio 786 is now asking the Constitutional Court to declare Clause 2 (a) of the Code of Conduct for Broadcasters, unconstitutional on three grounds. The call is being made firstly on the grounds that it limits freedom of expression, secondly because it is too broad and thirdly on the bases of it originates in the apartheid racist regime. The radio station also argues that the Clause regulates content, which is difficult to implement.

In terms of the Constitution freedom of expression is a condition indispensable to the attainment of all other freedoms. However, it is subjected to limitation under section 36 of the constitution. It is also weighed up against many other rights, including the right to equality, dignity, privacy, political campaign, fair trial, economic activity, workplace democracy, property and most significantly the rights of children and women.

Another interesting development is the fact that the matter has brought into question the constitutionality of Clause 2(a) of the Code of Conduct for Broadcasters, which was the apartheid regime passed to prevent criticism of its policies.

The South African government for example and other privilege organizations in the country have often referred back to apartheid laws which are not compatible with the constitution of the country (similar to Clause 2(a) in order to stifle debates or deny access to information.

The Department of Justice for example still uses Section 205 of the Criminal Procedure Acts in order to subpoena journalists despite constitution emphasis on a free press.

The Ministry of Defense is equally guilt of manipulating the legal system to denying access to information. Public Protector Selby Baqwa earlier this year used Section 118(a) of the Defense Act of 1957 to bar broadcasters from giving live coverage of the hearing into the arms deal. The Act requires the permission of the Minister of Defence to convey information regarding certain aspects of the Defence Force. Section 11 of the Armaments Development and Production Act Act 57 of 1968 prohibits the disclosure by any person, including the news media, of any information relating to the acquisition in connection with armament by for or on behalf of the Armament Corporation without the written authority of the Minister or other authorized person.

It is yet another unfortunate incident that the South African Board of Jewish Deputies would like to be identified with the same tactics that the government is playing. It is important that the compatibility of section 2(a) of the Code of conduct for Broadcasters and the country’s constitution have been brought before the constitution. As the FXI we also agree that the Board of Deputies have the constitutional right to be heard.

We agree that if anyone is maliciously offended they should seek recourse however, the process should be in the spirit to encourage debate not stifling it. A distinction between academic engagements and narrow arguments, which have no intellectual backing, should be made to avoid stifling of genuine debates. However, we do not agree with the use of apartheid laws to censor free speech and the narrow definition of hate speech in order to stifle debates.

The Diary

Move to protect journalists in Zimbabwe

The Freedom of Expression Institute together with Article 19, Southern African Journalist Association, Publisher Association, and International Media Support have come together to discuss the Zimbabwean crisis.

The five organizations are concerned that as Zimbabwe moves closer to presidential elections the safety of journalists may be at risk. The Zimbabwean government has in the past drafted bills that are aimed at silencing the independent media. Journalists from private newspapers have also been arrested, torture and even beaten up in the country.

In order to continue to fight for freedom of expression in Zimbabwe the organizations noted that, effort to protect individual must go along with the efforts to protect what those individual are fighting for.

For further information contact:

Scotch Tagwireyi

Information and Communications Officer, Freedom of Expression Institute Phone 27 11 403 8403, Cell 27 72 357 2699, Fax 27 11 4038309