Incitement to hatred: a Southern African perspective

This paper focuses on the legal response to incitement to hatred in South Africa, Namibia and Zimbabwe. The choice of these three Southern African countries is not coincidental. All three share a similar historical heritage of white minority rule characterised by the systematic and often brutal repression of basic rights and liberties ultimately followed by a negotiated settlement. In all cases, the settlement included mechanisms for the granting of amnesty to those who committed politically motivated crimes during the liberation struggle. 1 All three countries now enjoy the protection of a constitutionally entrenched Bill of Rights and an independent judiciary. This paper deals primarily with the approach by the three countries to incitement to hatred since the advent of democracy.

Zimbabwe

Following a protracted guerrilla war, Zimbabwe finally achieved independence in 1980:

"At the heart of the conflict was a social structure in which eight million voteless blacks scratched out a living at subsistence level or below while 250 000 whites - barely 3 per cent of the population - enjoyed a privileged existence that is said to have included, among other things, the highest per capita number of private swimming pools in the world. White Rhodesia was in many ways not unlike its neighbour and closest ally, apartheid-ruled South Africa. The white minority owned more than half of the country's arable land and virtually all of its business and industry. Education, health care, housing - all were segregated, with whites enjoying opportunities equivalent to those in western Europe or the United States. Blacks were confined by law to bleak urban townships, barren rural 'tribal trustlands', or the workers' quarters of white commercial farms on which the World Bank found more than half of black children undernourished." 2

The post-independence period did not completely restore peace to Zimbabwe. Internal dissention among former allies in the liberation struggle and the strategy of deliberate destabilisation by the South African Security Forces, denied the fledgling democracy the opportunity for reconstruction and peaceful coexistence. The settlement reached at the Lancaster House Conference in 1979 ensured the white minority a measure of political power which was strikingly disproportionate to their numbers. Whites were guaranteed 20 out of the 100 parliamentary seats. 3 The Lancaster House settlement produced a Constitution which came into effect with independence on 18 April 1980. The Constitution contains a declaration of rights reminiscent of the constitutions of many former African colonies. Section 11 of the Constitution provides:

"Whereas every person in Zimbabwe is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, tribe, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely - (a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the privacy of his home and other property and from the compulsory acquisition of property without compensation, and whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest."

Although cast in the form of a preamble, section 11 of the Constitution has been interpreted as conferring substantive rights on the individual and is not merely a guide to the intention of the framers of the Declaration of Rights. 4

Section 20(1) of the Constitution specifically guarantees freedom of expression in the following terms:

"Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence."

Certain specific exemptions to this guarantee are recognised. It is provided that nothing contained in or done under the authority of any law shall be held to be in contravention of sub-section (1):

"...to the extent that the law makes provision for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings except so far as that provision or, as the case may be, the thing done under the authority thereof is shown to be reasonably justifiable in a democratic society." 5

The new democracy inherited much of the legislation of the previous regime. Two statutory enactments have a particular bearing upon incitement to hatred. The first is the Law and Order (Maintenance) Act (Chapter 65), section 44(2) of which makes it a criminal offence to:

"(a) write, print or cause to be printed any subversive statement; (b) distribute or circulate any subversive statement among the public or any section of the public or supply any written or printed subversive statement to any other person; (c) display any writing conveying any subversive statement in such a position that it is visible from any place to which the public has access; (d) utter or by means of a recording apparatus play (otherwise than during the investigation of an offence or of proceedings in a court of law) any subversive statement in the hearing of any other person; (e) make a subversive statement which is recorded by means of a recording apparatus."

The phrase "subversive statement" has a wide meaning. It includes any statement which is likely to -

"(a) bring the President in person into hatred or disrepute; (b) excite disaffection against the President in person or the government or Constitution of Zimbabwe; (c) incite others to attempt to procure, other than by lawful means, the alteration of any matter established by law; (d) engender or promote feelings of hostility to or expose to contempt, ridicule or disesteem any group, section or class in or of the community of a particular race, religion or colour."

The penalty for a contravention of the section is imprisonment for up to five years. The option of a fine is not catered for. There are no reported cases on this section.

The second statutory enactment bearing upon the subject of incitement to hatred is section 3(1)(n) of the Miscellaneous Offences Act (Chapter 68) which makes it an offence to use obscene, abusive, insulting or threatening language in a public place. This section has been the subject of one reported decision. In S v Du Plessis 6 it was alleged that the appellant had contravened the section by saying at the Chipinge Country Club: "Who brought this thing here, this kaffir?", referring to the complainant. The appellant's conviction for contravening the section was reversed on appeal on the narrow basis that the offensive words were not uttered in a "public place". The Supreme Court held that the State had failed to discharge the onus of establishing that ordinary members of the public were present as of right, "in the sense that they had access, although being neither members of the club, nor the invited guests of members." 7 Although strictly not called upon to do so, the court did not comment adversely on the appellant's offensive behaviour.

In the fifteen years since independence, there have been relatively few constitutional cases emanating from Zimbabwe. The Supreme Court has shown itself willing and able to protect and uphold the constitutional guarantee of freedom of expression, particularly in two noteworthy cases concerning contempt of court 8 and rights of assembly. 9 There is, however, a disturbing undercurrent of official intolerance in the country and attempts to intimidate the media. 10 The most recent and disturbing episode is the prosecution of Elias Rusike, Trevor Ncube and Simba Makunike, respectively the publisher, editor and deputy-editor of Zimbabwe's Financial Gazette for criminal defamation arising out of the publication of an article wrongly alleging that President Mugabe had secretly undergone a marriage ceremony. Zimbabwe's senior public prosecutor, Duncan Dingana, had considered the allegations insufficient to warrant proceedings by way of arrest and remand. The Attorney-General - a member of President Mugabe's cabinet - intervened, resulting in the arrest and detention in police cells for more than 48 hours of the three journalists. The trial is proceeding. 11

A further indication of official intolerance concerns the initial refusal (and subsequent retraction) by the organisers of the Zimbabwe International Book Fair to allow the Gays and Lesbians of Zimbabwe to participate in the event. The Executive Director of the Book Fair cited as reasons for the refusal that she could not risk jeopardising the "tenuous" relationship with the authorities in Zimbabwe which she had spent "considerable money, time and effort in building ... up over the past five years". 12 After official protests, the organisers of the book fair relented, granting permission to the organisation to participate in the fair without prejudice to "the law of the land or the participating public and minors". 13

Another recent incident in which there were overt expressions of racism concerned the trial of British anaesthetist Dr Richard McGowan, charged and convicted of negligently causing the death of two black children. McGowan was accused in Parliament of Nazi-like experiments on blacks. He was sentenced to an effective term of six months imprisonment and a fine of $10 000,00. When sentence was passed, jeering mobs outside the court threatened to attack whites, if Dr McGowan was not hanged. 14 No action has been taken against those concerned.

Namibia

The signing of the Treaty of Versailles on 28 June 1919 at the conclusion of the First World War required Germany to relinquish its subject territories, including German South West Africa. A year later, the Council of the League of Nations decreed that South West Africa would be a mandated territory under the supervision of South Africa.15 For many years prior to its independence in 1990, Namibia was generally regarded as "hardly distinguishable" from a province of South Africa. 16 Indeed, in 1946 during the first session of the United Nations, South Africa unsuccessfully requested that the mandated territory of South West Africa be incorporated into South Africa as a fifth province. 17 Thereafter, the South African Government "began a rapid and overt process of de facto annexation of the Territory in contravention of international law". 18

The Constitution of Namibia, adopted on independence, was an explicit break with the past. The preamble to the Constitution provides:

"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace; Whereas the said rights include the right of the individual to life, liberty and the pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status; ... Whereas these rights have for so long been denied to the people of Namibia by colonialism, racism and apartheid; Whereas we the people of Namibia - have finally emerged victorious in our struggle against colonialism, racism and apartheid; are determined to adopt a Constitution which expresses for ourselves and our children our resolve to cherish and protect the gains of our long struggle; desire to promote amongst all of us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world; will strive to achieve reconciliation and to foster peace, unity and a common loyalty to a single state ... Now therefore, we the people of Namibia accept and adopt this Constitution as the fundamental law of our Sovereign and Independent Republic." 19

The Constitution guarantees those basic liberties found in all major constitutions and international legal instruments including freedom of expression 20 , dignity 21 and equality. 22

In 1991, the Racial Discrimination Prohibition Act was passed. 23 It is a comprehensive statute which, according to its long title, is intended to render criminally punishable:

"certain acts and practises of racial discrimination and apartheid in relation to public amenities, the provision of goods and services, immovable property, educational and medical institutions, employment, associations, religious services and involving the incitement of racial disharmony and victimisation."

Section 11 deals with incitement to racial disharmony in the following terms:

"11 (1) No person shall publicly use any language or publish or distribute any written matter or display any article or do any act or thing with intent to - (a) threaten, ridicule or insult any person or group of persons on the ground that such person belongs or such persons belong to a particular racial group; or (b) cause, encourage or incite disharmony or feelings of hostility, hatred or ill-will between different racial groups or persons belonging to different racial groups; (c) disseminate ideas based on racial superiority. (2) For the purposes of sub-section (1) 'article' shall include any flag, insignia or emblem. (3) No person shall establish, support or be a member of or participate in the activities of an organisation or movement of which the aim is to engage in acts of violence against members of any particular racial group or in activities aimed at causing, bringing about, promoting or contributing towards any such acts."

The penalty for contravening section 11 may result in a fine not exceeding R80 000,00 or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment. 24

The constitutionality of section 11 of the Racial Discrimination Prohibition Act arose in Kauesa v Minister of Home Affairs & Others. 25 The facts were briefly as follows: the applicant, a warrant officer in the Namibian Police Force had taken part in a panel discussion which was broadcast on television and in which issues relating to the administration of the police force were discussed. The applicant stated, inter alia, that white officers in the command structure of the police force were determined to undermine the government's policy of reconciliation, facilitated corruption, abused their power and had collaborated with "traitors and terrorists" by supplying police weapons to them. As a result of the applicant's televised speech, he faced a departmental hearing for an alleged contravention of a police regulation which prohibited members of the force from "commenting unfavourably in public upon the administration of the force". The applicant sought an order declaring the regulation to be invalid for being in conflict with the fundamental right of freedom of speech and expression contained in Article 21 of the Namibian Constitution. Although not called upon to do so, the court gave extensive consideration to the constitutionality of section 11(1)(b) of the Racial Discrimination Prohibition Act. Referring to the offending statements, O'Linn J stated:

"That it is a highly inflammatory speech, is patent from the contents of the speech which was televised. The speech was of a racist nature. It contained untrue and far-fetched allegations which certainly gravely injured the dignity and good name of the so-called command structure of the police and particularly of the white senior officers in that command structure." 26

Commenting on the purpose of section 11(1)(b) the court stated:

"The restrictions contained in Article 11(1)(b) of the Race Discrimination Prohibition Amendment Act, are in the first place enacted by the National Assembly against the background of a long struggle, including an armed struggle, against a dispensation where the violation of the dignity of the person and where discrimination on the basis of race, colour, ethnic origin, sex and creed, were endemic in the system of oppression and were root causes of thestruggle for liberation. Against this background the people of Namibia committed themselves in the preamble of the Constitution of Namibia to eradicate the said evils of the previous dispensation and set out their values and aims in the preamble to the Constitution of Namibia. .... The prohibition contained in Article 11(1)(b) ... is an attempt to give further effect to the aforesaid values and aims." 27

After considering the constitutionality of the section in some 40 pages of the judgment and although not strictly an issue in the proceedings, the court was of the prima facie view that the section was constitutional. 28

One of the crucial issues which has arisen in Namibia is the approach of the judicial system to racially motivated crimes. The issue arose in S v Van Wyk, 29 a case concerning a charge of murder resulting from an unprovoked assault. In mitigation of sentence the appellant led expert evidence by a psychologist that the crime was racially motivated. The evidence was to the effect that a person's chances of becoming a racist were greater if he grew up in a racist environment, governed by racist legislation and was subjected to racist indoctrination. The tenor of this evidence was that an accused who commits a racially motivated crime is entitled, from a psychological perspective, to be dealt with more sympathetically if his racism is environmentally induced. 30 The court made short shrift of this argument. AJA Mohammed stated:

"To state that the appellant's racism was conditioned by a racist environment is to explain but not necessarily to mitigate. At different times in history, societies have sought to condition citizens to legitimise discrimination against women, to accept barbaric modes of punishing citizens and exacting brutal retribution, and to permit monstrous invasions of human dignity and freedom through the institution of slavery. But there comes a time in the life of a nation, when it must and is able to identify such practices as pathologies and when it seeks consciously, visibly and irreversibly to reject its shameful past. That time for the Namibian nation arrived with its independence. The commitment to build a new nation was then articulated for everybody inside and outside Namibia to understand, to cherish, to share and to further. The appellant must, like other citizens, have been exposed to the force and the significance of this message. To allow the 'racist socialisation' of pre-independence Namibia to operate as a mitigating circumstance, after the new Constitution has been publicly adopted, widely disseminated, and vigourously debated both in Namibia and the international community, would substantially be to subvert the objectives of the Constitution, to impair the process of national reconciliation and nation building and to retard the speed with which Namibian society has to recover from the legacy of its colonial past." 31

As a former German colony, Namibia has a significant German-speaking population. There have been occasional expressions of Nazi sympathy, the most recent of which occurred with the placement of an advertisement in the Windhoek Advertiser commemorating the death of Rudolf Hess. 32 The advertisement in question sought to eulogise Rudolf Hess as a "martyr of peace" who became "part of history when, on May 10, 1941, he flew to the real wire-drawers of World War II in England with a peace message of the Fuhrer Adolf Hitler to end the big suffering." A prosecution in terms of the Racial Discrimination Prohibition Act is pending.

South Africa

South Africa is the youngest of the Southern African democracies. The first democratic elections were held in April 1994 and ushered in a new Constitution which took effect on 27 April 1994. 33 There are few other countries with a more disreputable history of racial oppression than South Africa. The South African Constitution, however, like that of Namibia, promises a decisive break with the past. The preamble records that:

"There is a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms."

The Constitution ends with an unnumbered section entitled "National Unity and Reconciliation" which provides:

"This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for Ubuntu but not for victimisation. ..." 34

The Constitution guarantees, inter alia, the rights of equality, 35 dignity 36 and freedom of expression. 37 None of the rights enshrined in the Constitution is absolute. All are capable of limitation. 38 The limitation of certain rights, however, is subjected to greater scrutiny than others. Thus, insofar as the guarantee of freedom of expression "relates to free and political activity" any limitation, in addition to being reasonable, must also be necessary. 39

Although the Constitution purports to be a bridge between a deeply divided past and a future founded on the recognition of human rights, democracy and peaceful co-existence, the heritage of racism cannot be wished away. There exists in South Africa a number of small but violent right wing groupings opposed to the new democratic order. 40 Some of the more moderate right wing elements chose to participate in the electoral process and secured limited representation in the new Parliament. 41 Although there were nuances in the policies of the right wing groupings, a common theme among many of them was the demand for the establishment of a separate white Afrikaner State. Issues of race, therefore, played and continue to play a significant role in political debate. The legal problem for South Africa is how to accommodate political programmes which many would consider racist within a constitutional dispensation which in essence is a rejection of apartheid and all its manifestations.

Before the transition to democracy, liberal South African lawyers argued that "in a racially diverse society there is clearly a need for laws which prohibit incitement to racial hatred". 42 43 44 These recommendations did not find favour with the drafters of the Interim Constitution. In South Africa, the Publications Act 45 remains the principal vehicle for effecting direct censorship in the form of the banning of publications and films. Publications and films could be deemed to be "undesirable" if, inter alia, they brought "any section of the inhabitants of the Republic into ridicule or contempt" 46 or were "harmful to the relations between any sections of the inhabitants of the Republic". 47 Significantly, these crucial definitions were repealed shortly before the first democratic elections by the Abolition of Restrictions on Free Political Activity Act. 48 It was obviously believed that the kind of robust and uninhibited debate necessary for free and fair elections would have been inhibited while these definitions stood.

At present, section 62 of the Internal Security Act 49 is the only criminal statute which prohibits incitement to racial hostility. There are no reported cases dealing with the application of this law. Although laws prohibiting incitement to racial hostility have a long history in South Africa, they have almost exclusively been invoked against anti-apartheid opponents of the government. 50 Section 62 of the Internal Security Act is due to be repealed and replaced by a prohibition which will confine the offence to racially inflammatory communications at gatherings or demonstrations. In terms of the Regulation of Gatherings Act, 51 it is proposed that section 62 of the Internal Security Act be repealed and replaced by a provision in the following terms:

"No person present at or participating in a gathering or demonstration shall by way of a banner, placard, speech or singing or in any other manner incite hatred of other persons or any group of other persons on account of differences in culture, race, sex, language or religion." 52

A Task Group appointed by the Minister of Home Affairs to consider new censorship legislation has recommended that the issue of incitement to racial hatred be dealt with by criminal prohibition and not by administrative regulation. 53

As far as radio and television is concerned, section 56 of the Independent Broadcasting Authority Act 54 requires all broadcasting licensees to adhere to a Code of Conduct. Paragraph 2(1) of the Code provides that, "broadcasting licensees shall not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of the population or likely to prejudice the safety of the State or the public order or relations between sections of the population." 55

The transition to democracy and the unbanning of previously banned organisations inevitably led to political tensions. Supporters of the former liberation movements, now free from any real threat of political persecution, frequently ventilated anger directed at the white minority. The response from militant right wing organisations was no less severe. Supporters of the Pan Africanist Congress (PAC) were frequently heard to chant the slogan "One settler, one bullet" with impunity. No prosecutions were instituted. A prominent member of the African National Congress (ANC), on a number of public occasions encouraged mass audiences to chant the slogan "Kill the boer, kill the farmer". Peter Mokaba, later to become a member of parliament, addressed a mass meeting at the University of the Witwatersrand attended by approximately 1000 students, at which the slogan was chanted. On this occasion, the police were apparently interested in instituting a prosecution. Instead of attempting to obtain evidence from any of the many students and University security authorities who attended the meeting, they chose instead to attempt to extract information from a journalist who had written a report concerning the events in question. The journalist refused to make a statement and was thereupon subpoenaed, upon pain of imprisonment, to answer questions concerning his knowledge of the offending speech. 56 The journalist declined to answer questions, was sentenced to a term of imprisonment and then instituted proceedings to have the subpoena set aside. This he succeeded in doing. 57 No prosecution against Mr. Mokaba was instituted. 58

As in Namibia, South Africa has also experienced a number of racially motivated acts of violence. In one case, members of the militant Afrikaner Weerstandsbeweging were sentenced to death 59 for the murder of seven blacks. All the accused were opposed to a possible black government in the country in the future and were prepared to do everything possible to preserve the interests of whites in general and the Afrikaner people in particular. They had attacked a bus carrying black passengers with automatic rifles in revenge for an attack earlier on the same day by black youths, apparently members of the Pan Africanist Congress, on whites in which eight people were injured. On appeal, the issue of the appellants' political beliefs and motivations was considered in relation to mitigation of sentence. The court held that the appellants' membership of political organisations, albeit contributing towards their crimes, could carry little weight in mitigation. Moreover, it was held that the motive for the killings was revenge and nothing more. In confirming the sentences of death, the court observed:

"In an uncertain political climate with inevitable tension between the population groups, the spectre of widespread racial violence is always in the background. Every right-thinking person ... hopes that this will not become reality. Unfortunately there are always those who incite unrest and see violence as the only solution. I emphasise what I have said before, namely, that every person is free to believe what they want but no one can be permitted violently to impose his personal convictions on others. He thereby not only jeopardised his own safety but also that of millions of citizens." 60

Concluding observations

South Africa, Namibia and Zimbabwe are all signatories to the International Covenant on Civil and Political Rights, Article 20(2) of which declares that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. 61 All three countries have at their disposal laws which criminalise incitement to hostility. However, the experience in all three countries shows an unwillingness to use the blunt instrument of the criminal law. The absence of prosecution does not mean the absence of violation of the law. Rather, there appears to be a reluctance to prosecute, particularly during a transitional process in which racial issues continue to be integral to political debate. In all three countries, the individual victim of an insult would enjoy a civil remedy in damages but this would be ineffective in cases of group defamation. 62 The preoccupation in all three countries has been reconciliation and the impetus to create a new and just society. Prosecutions for racial insults have seldom been employed in striving towards that end.

Notes

* Text of a paper to be published in Media Laws in Southern Africa, a joint publication of Article 19 and the Media Institute of Southern Africa (London: forthcoming).

1. In the case of South Africa, the release of political prisoners and the granting of immunity from prosecution to exiles who participated in the armed struggle against apartheid was a fundamental issue in the negotiations following the break with apartheid announced by then President FW De Klerk in February 1990. Two statutes, the Indemnity Act 35 of 1990 and the Further Indemnity Act 151 of 1992 were intended to provide amnesty and indemnity to participants on all sides of the liberation struggle (see generally 1992 Annual Survey of South African Law at 761 - 764). The postscript to the Constitution of the Republic of South Africa (Act 200 of 1993) provides that “in order to advance ... reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.” Legislation pursuant to this constitutional injunction has been the subject of major controversy and has only recently been passed. See the Promotion of National Unity and Reconciliation Act 34 of 1995.

2. Lawyers Committee for Human Rights Zimbabwe: Wages of War (1986) at 17.

3. For a summary of the settlement proposals, see South African Institute of Race Relations Survey of Race Relations in South Africa: 1980 at 655-668.

4. See In Re Munhumeso & Others 1995 (1) SA 551 at 555E-556D and Rattigan & Others v Chief Immigration Officer, Zimbabwe & Others 1995 (2) SA 182 at 186B-I.

5. Section 20(2)(b)(i) of the Constitution.

6. 1992 (1) SACR 594 (ZS).

7. at 595f and 596c-d.

8. S v Hartmann & Another 1984 (1) SA 305 (ZSC), commented on by G.J. Marcus in B van Niekerk, The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World (1986) at 354-356.

9. In Re Munhumeso & Others 1995 (1) SA 551 (ZSC).

10. See, generally Article 19 Truth from Below: The Emergent Press in Africa (1991) at 66-69 and Article 19 Information, Freedom and Censorship (1991) at 67-70.

11. Business Day 19 May 1995. See also, Media Institute of Southern Africa, Action Alert Up-Date, Zimbabwe, 24 July 1995.

12. Letter dated 3 February 1995 from Trish Mbanga, Executive Director of the Zimbabwe International Book Fair to the Chairperson, Gays and Lesbians of Zimbabwe.

13. Undated letter from the Chairperson of the Zimbabwe International Book Fair to Gays and Lesbians of Zimbabwe.

14. The Citizen 25 July 1995.

15. For a comprehensive overview of the international legal implications of the mandate, see John Dugard The South West Africa/Namibia Dispute (1973) and for more recent events leading up to independence see the summary by N Steytler “The Judicialization of Namibian Politics” (1993) 9 South African Journal on Human Rights 477.

16. John Dugard Human Rights and the South African Legal Order (1978) at 4.

17. General Assembly Resolution 65(1) (1946).

18. Elizabeth Landis “Namibia: A Transatlantic View” (1987) 3 South African Journal on Human Rights 347.

19. In S v Van Wyk 1992 (1) SACR 147 (Nm SC) AJA Mahomed (as he then was, later to become Chief Justice) said the following of the Namibian Constitution at 172-3:

“Throughout the preamble and substantive structures of the Namibian Constitution there is one golden and unbroken thread - an abiding `revulsion’ of racism and apartheid. It articulates a vigorous consciousness of the suffering and the wounds which racism has inflicted on the Namibian people `for so long’ and a commitment to build a new nation `to cherish and to protect the gains of our long struggle’ against the pathology of apartheid. I know of no other Constitution in the world which seeks to identify a legal ethos against apartheid with greater vigour and intensity.”

20. Article 21(1)(a).

21. Article 8(1).

22. Article 10.

23. Act 26 of 1991.

24. Section 14(b).

25. 1994 (3) BCLR 1 (NmH).

26. At 15C

27. At 51C - J

28. At 55G - I

29. 1992 (1) SACR 147 (Nm).

30. The evidence is summarised at 167b - f.

31. At 173c - e Ackermann AJA considered that a court of law, “when considering an appropriate punishment for a crime which has been motivated by racism, will in fact be acting in accordance with the constitutional commitment and public policy ... if it considers such racist motive to be an aggravating circumstance and therefore places additional emphasis on the retributive and deterrent objects of punishment in order, inter alia, to contribute to the eradication of racism.” (at 169j - 170a). CJ Berker considered it appropriate to direct certain comments to “the attention of the people of Namibia and the press”. He observed that, “very regrettable incidents of this nature have occurred and still occur in our country on quite a number of occasions, where white men attack and assault black citizens, being motivated by racism. The rate of this type of crime must be brought under control, and this court will act firmly and very severely with such cases, imposing heavy and long sentences of imprisonment.” The Chief Justice “vehemently” disagreed with an approach which regarded upbringing in a racist environment as a mitigating factor and expressed the view that it constituted “a strongly aggravating factor when passing an appropriate sentence”(at 171f - j).

32. Advertisement in Windhoek Advertiser, 17 August 1994. See also, Media Institute of Southern African, Action Alert Up-Date - Namibia (2) 18 July 1995.

33. The Constitution of the Republic of South Africa Act 200 of 1993.

34. The word “Ubuntu” may loosely be translated as “humanity”. In terms of section 232(4), in interpreting the Constitution a provision under the heading “National Unity and Reconciliation” is deemed not to have “a lesser status than any other provision” of the Constitution.

35. Section 8.

36. Section 10.

37. Section 15.

38. Section 31 of the Constitution defines the circumstances in which a right entrenched in the Constitution may be limited. Any limitation of a right must comply with the requirements of section 33(1) which provides:

“The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation - (a) shall be permissible only to the extent that it is - (I) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; (b) and shall not negate the essential content of the right in question ...”

39. Section 33(1)(bb).

40. The most prominent of the militant right wing organisations is the Afrikaner Weerstandsbeweging under the leadership of Mr Eugene TerreBlanche. It has an armed wing which makes frequent public appearances.

41. Prominent amongst these groupings was the Afrikaner Volksfront, established under the leadership of former Chief of the South African Defence Force, General Constand Viljoen in 1993 and the Conservative Party. See generally South African Institute of Race Relations Race Relations Survey: 1993/94 at 512-543 .

42. John Dugard Human Rights and the South African Legal Order (1978) at 177. Similar sentiments have been expressed by the late Professor AS Mathews (AS Mathews Law, Order and Liberty in South Africa (1971) at 211).

43. The African National Congress, now the majority party in the new parliament, has long advocated the need for laws prohibiting incitement to racial hatred. The draft Bill of Rights published by the ANC’s Constitutional Committee in 1990 recommends a limitation on the guarantee of freedom of expression which would immunise laws preventing incitement to racial hatred from constitutional review.

44. The proposed Bill of Rights guarantees “freedom of thought, speech, expression and opinion, including a free press” in Article 4. However, paragraphs 3 and 4 of Article 14 specifically envisage a derogation from these guarantees. They provide:

“14(3) The State and all public and private bodies shall be under a duty to prevent any form of incitement to racial, religious or linguistic hostility and to dismantle all structures and do away with all practices that compulsorily divide the population on grounds of race, colour, language or creed. (4) With a view to achieving the above, the State may enact legislation to prohibit the circulation or possession of materials which incite racial, ethnic, religious, gender or linguistic hatred, which provoke violence, or which insult, degrade, defame or encourage abuse of any racial, ethnic, religious, gender or linguistic group.”

45. Act 42 of 1947.

46. Section 47(2)(c) of Act 42 of 1974.

47. Section 47(2)(d) of Act 42 of 1974.

48. Act 206 of 1993.

49. Act 74 of 1982. Section 62 provides:

“Any person who utters words or performs any other act with intent to cause, encourage or foment feelings of hostility between different population groups or parts of population groups of the Republic, shall be guilty of an offence and liable on conviction to a fine not exceeding two thousand rand or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.”

50. For a history of the application of the South African laws dealing with racial hostility see Gilbert Marcus “Racial Hostility: The South African Experience” in S Coliver (ed) Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (1992) at 208-222.

51. Act 205 of 1993.

52. In terms of section 16 of the Regulation of Gatherings Act 205 of 1993, the Act will come into operation on a date to be proclaimed. This has not yet occurred. Section 14 of the Act envisages the repeal, inter alia, of section 62 of the Internal Security Act.

53. Report of the Task Group: Film and Publication Control, 1 December 1994, at pp 51-54.

54. Act 153 of 1993.

55. The Code of Conduct for broadcasting services appears in Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993.

56. The journalist, Andries Cornelissen, was subpoenaed in terms of section 205 of the Criminal Procedure Act 51 of 1977 which enables a person who has material or relevant information concerning the suspected commission of an offence to be interrogated concerning his knowledge of the offence.

57. S v Cornelissen: Cornelissen v Zeelie N O en Andere 1994 (2) SACR 41 (W).

58. Although Mokaba could probably have been prosecuted under section 62 of the Internal Security Act 74 of 1982, the police were apparently more interested in prosecuting him with the offence of terrorism as defined in section 54 of the Act and the offence of intimidation in terms of section 1 of the Intimidation Act 72 of 1982. See S v Cornelissen: Cornelissen v Zeelie N O en ‘n Andere 1994 (2) SACR 41 (W) at 50c-d.

59. These events occurred before the death sentence was declared unconstitutional by the Constitutional Court in S v Makwanyane & Another 1995 (6) BCLR 665 (CC).

60. At 85D-G, loosely translated from the Afrikaans in which the judgment was delivered. It should be emphasised that while this judgment does not go as far as the decision of the Namibian Supreme Court in S v Van Wyk (supra note 19), the judgment was delivered before the passing of the new Constitution.

61. Only Zimbabwe has ratified the Convention. South Africa is also a signatory to the International Convention on the Elimination of all forms of Racial Discrimination but has not yet ratified the Convention.

62. Roman Dutch law is the basis of the common law in South Africa, Zimbabwe and Namibia. There have been occasional cases in South Africa in which the victims of racial insult have recovered damages. See, for example, Mbatha v Van Staden 1982 (2) SA 260 (N) in which Didcott J (as he then was) observed at 262 H - 263 A:

The tirade’s worst feature was the use of the epithet ‘kaffir‘. ... the term is a derogatory and contemptuous one. Its usage in this part of the world has seen to that, whatever its original connotations may have been. With much the same ring as the word ‘nigger’ in the United States, it disparages the Black race and the person concerned as a member of that race. It is deeply offensive to blacks. Just about everyone knows that by now.