Zimbabwe
Following a protracted guerrilla war, Zimbabwe finally achieved independence in 1980. Independence negotiations resulted in a settlement, which produced a Constitution that came into effect with independence on 18 April 1980.
The Constitution contains in Chapter III a Declaration of Rights. Section 11 provides a list of fundamental rights, which are subject to such limitations as are necessary for the respect of the rights and freedoms of others and for the public interest.
Although cast in the form of a preamble, s 11 of the Constitution has been interpreted by the courts as conferring substantive rights on the individual and not as merely a guide to the intentions of the framers.
[See In re Munhumeso, 1995 (1) SA 551 (ZSC) at 555e-556d; and
Rattigan v Chief Immigration Officer, Zimbabwe, 1995 (2) SA 182 (ZSC) at 186 b-i.]
Section 20(1) of the Constitution, providing for the right to freedom of expression, is subject to certain limitations provided for in s 20(2). These include any laws making provision for protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, unless such provision or the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society. Two statutes inherited from the colonial régime have a particular bearing upon incitement to hatred. The Law and Order (Maintenance) Act which makes it a criminal offence to write, print, distribute, circulate, supply, display or record any statement which is likely to bring the person of the President into hatred or contempt; excite disaffection against the President, the government or the Constitution; incite anyone to attempt to procure, otherwise than by lawful means, the alteration of any matter established by law.
It also includes any statement likely to engender or promote feelings of hostility or expose to contempt, ridicule or disesteem any group, section or class in or of the community of a particular race, religion or colour. Section 3(1)(n) of the Miscellaneous Offences Act (Chapter 68 of the Laws of Zimbabwe) makes it an offence to use obscene, abusive, insulting or threatening language in a public place. In S. v. du Plessis 1992(1) SACR 594 (ZS), the defendant was charged with and convicted of contravening this provision when, referring to the complainant, he is alleged to have said, "Who brought this thing here, this kaffir?" However, the conviction was reversed on appeal on the narrow basis that the offensive words were uttered in a private members' club and not in a "public place".
Namibia
The Constitution of Namibia, adopted at independence, was an explicit break with the apartheid past. It provides for those basic liberties found in all major constitutions and international legal instruments including freedom of expression, personal dignity, and equality and non-discrimination.
The Racial Discrimination Prohibition Act (No. 26 of 1991) renders criminally punishable certain "acts and practices 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 makes it an offence to publicly use any language, publish or distributed any written matter or display any article or do any act or thing with intent to threaten, ridicule or insult any person or group of persons on the ground that they belong to a particular racial group; or with intent to cause, encourage or incite disharmony or feelings of hostility, hatred or ill-will between different racial groups or persons belonging to different racial groups; or with intent to disseminate ideas based on racial superiority.
Namibia, a former German colony, has a significant German-speaking population and there have been occasional expressions of Nazi sympathy. In this context, the opportunity to test the constitutionality of s 11 of the Racial Discrimination Prohibition Act was not long in coming.
In Namibia v Ester Smith and Others, (Case No. CC 95/96, 27 Sept. 1996) the accused persons placed a newspaper advertisement commemorating the death of Rudolf Hess and eulogising him as a "martyr for peace". They were charged with violating section 11 (1) of the Racial Discrimination Prohibition Act. The High Court was invited to consider whether s 11(1) of the act violated constitutional provisions on freedom of expression. It held that while Parliament was entitled to pass legislation against the practice and propagation of racism, the section, as worded, violated Article 21 of the Constitution as the definition of 'racial group' in the act was too broad. The effect of the legislation went beyond what was required to achieve the legitimate aim pursued - that of avoiding the opening up of old wounds inflicted by Namibia's apartheid past. The court held that s 11 (1) could not be said to impose reasonable restrictions which were demonstrably justifiable in a democratic society as contemplated by Article 21 of the Constitution. The section was not carefully designed to achieve the objective in question nor did it impair the right to free speech as little as possible. It was also disproportionate as it stifled public debate on issues which were important to Namibia.
The court gave Parliament time to amend the section so as to conform to the Constitution failing which it would become invalid ipso facto. Parliament failed to amend it in the stipulated time and it can be safely argued that s 11 (1) no longer forms part of Namibian law. [See SAMLB Vol. 2, No. 4, Nov. 1997] South Africa The South African Constitution guarantees, among other things, the rights of equality, human dignity and freedom of expression. None of the rights entrenched in the Constitution are absolute; all can be limited to some degree in certain circumstances. 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 coexistence, the heritage of racism cannot be wished away.
The Constitution provides in s 16(2)(c ) that the right to freedom of expression does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 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. Before 1996, the Publications Act (No. 42 of 1974) was the principal vehicle for effecting direct censorship in the form of the banning of publications and films. Formerly, 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" or were "harmful to the relations between any sections of the inhabitants of the Republic". Significantly, these crucial definitions were repealed shortly before the first democratic elections by the Abolition of Restrictions on Free Political Activity Act (No. 206 of 1993). It was obviously believed that the kind of robust and uninhibited debate necessary for free and fair elections would have been constrained while these definitions stood.
Section 29 of the Films and Publications Act of 1996 created an offence of publishing, distributing, broadcasting or presenting material which, judged within the context, amounts to propaganda for war, incites to imminent violence or advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm. Bona fide discussion, argument or opinion on such issues is excluded from the scope of these offences. Section 62 of the Internal Security Act (No. 74 of 1982) prohibits incitement to racial hostility. There are no reported cases dealing with the application of this law. In terms of the Regulation of Gatherings Act (No. 205 of 1993) s 62 is due to be repealed and replaced by a prohibition which will confine the offence to racially inflammatory communications at gatherings or demonstrations. 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, rather than by administrative regulation under censorship provisions.
Section 56 of the Independent Broadcasting Authority Act (No. 153 of 1993) 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". Concluding observations Zimbabwe and Namibia are states parties to the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination; South Africa has signed both, indicating its intention to become a party to them, but has not yet ratified them. Both treaties contain provisions against hate speech.
In all three countries, the individual victim of an insult would enjoy a civil remedy in damages but there is no such remedy for cases of group defamation. There have been occasional cases in South Africa [e.g. Mbatha v. Van Staden 1982 (2)SA 260 (N)] and Zimbabwe [e.g. Zimbabwe Newspapers Ltd v Bloch 1997 (1) ZLR 473 (S)] in which the victims of racial insult have recovered damages. All three countries have at their disposal laws which criminalize incitement to hostility. However, there is an unwillingness to use the blunt instrument of the criminal law. There appears to be a reluctance to prosecute, particularly during a transitional process in which racial issues continue to be integral to political debate. The preoccupation in all three countries has been reconciliation and the impetus to create a new and just society. Prosecutions for racial insult have seldom been employed in striving towards that end.
Gilbert Marcus
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