Friday, April 16, 2010

Freedom of Expression: A Few Limitations are the price of Reconciliation in SA

[Co-authored with Prof. Max du Plessis. Appeared in the Business Day on 15 April 2010. A digression in terms of topic but an interesting one]

The term “hate speech” has been used with varying degrees of accuracy of late, most prominently in reference to the singing of a song by African National Congress (ANC) Youth League president Julius Malema with the refrain, “dubula ibhunu” (shoot the boers).

Less auspiciously, it was used by ANC secretary-general Gwede Mantashe to incorrectly characterise the Freedom Front’s “prosecute Malema” campaign. The former claim has some purchase and merits further consideration; the latter does not. All in all, the claims about hate speech have generated plenty of heat and little light. And sadly, the ANC and President Jacob Zuma, instead of exercising strong leadership to quell the current crisis, have burdened the courts with the task of sorting out political controversies.

Despite its misuse in popular political discourse, hate speech has a defined legal meaning. It is the advocacy of hatred based on race, ethnicity, gender or religion in a manner that constitutes incitement to cause harm. In effect, the prohibition on hate speech curtails the right to freedom of expression guaranteed in section 16 of the constitution.

In any given case, whether some utterance or action amounts to hate speech will depend on the content and context. Before the question of the singing of that struggle song is adjudicated on by the courts, there will no doubt be debate about whether it crossed the line between free speech and hate speech. There is, however, a significant contribution missing from this debate: the decision of the appeals committee of the South African Human Rights Commission in 2003 on the “kill the farmer, kill the boer” slogan. While the two phrases differ, the commission’s decision speaks directly to the phrase “kill the boer”, and the context in which the two utterances were made are broadly similar. The commission’s finding is particularly relevant in the light of tentative defences raised in the current controversy and its high court rulings. The commission’s 2003 ruling, penned by then commissioner Karthy Govender, is illuminating. It arose from a Freedom Front complaint lodged with the commission after “kill the farmer, kill the boer” was chanted at an ANC Youth League meeting and the funeral of ANC veteran Peter Mokaba. The Freedom Front requested a declaratory order that using the slogan in the circumstances amounted to hate speech. Notably, the ANC tried to distance itself from the utterances, saying the slogan “has never been, cannot and will never be a slogan of the ANC”. It also declared there was no evidence that ANC members at these events endorsed the phrase, and suggested that the ANC could not be held responsible for everything said at public events held under its auspices.

The commission made a number of findings that cast light on the current debate. It found the phrase “kill the boer” amounted to advocacy of hatred on the basis of race or ethnicity. That is significant, particularly when regard is had to the claims by those that the “boer” reference is nothing personal, but rather a reference to the apartheid system. However, the commission’s most important findings, then and now, relate to the second aspect of the hate speech inquiry: incitement to cause harm.

The Freedom Front tried to link the slogan to the high incidence of farm killings to fulfil the harm criterion. The commission, however, found that the harm need not be physical or actual harm, but could include “psychological, emotional and other harm”, such as the adverse effect of an utterance on a group’s dignity. It cautioned, however, that such harm must be “serious and significant” for the slogan to amount to hate speech. Importantly, the commission stressed that the inquiry was not about the subjective intention of the individual who chanted the words, but whether objectively the utterance was reasonably likely to cause harm. Accordingly, the commission found “the slogan, given its content, its history and the context in which it was chanted, would harm the sense of wellbeing, contribute directly to a feeling of marginalisation, and adversely affect the dignity of Afrikaners”. Furthermore, it “says to them that they are still the enemy of the majority of the people of this country” and are “less deserving of respect and dignity”. Through this broad construction of harm, the commission found that the “kill the boer” chant constituted incitement to cause harm and amounted to hate speech.

The commission’s construction of hate speech, if correct, signals difficulties for Malema and his supporters. By adopting a substantive concept of harm and, importantly, focusing not on whether the person making the statements intends to cause harm by utterances, but objectively whether such utterances are likely to cause harm, the commission pre-empted many of the defences raised in justification of the song. As the commission held, it is not necessary to link the song to farm attacks, or other physical harm to befall the Afrikaner people. It is the objective focus on the effect of the utterance on the target group’s dignity that made the decision so remarkable in 2003, and so relevant today. If that effect was, in 2003, to cause harm sufficient to register as hate speech, then today an objective assessment seems to present the same answer.

What of the argument that to ban singing of that song would amount to historical revisionism, an act of ignoring the country’s history at our peril? First, the argument is overblown. To declare that song, or part of it, to be hate speech in certain conditions does not eviscerate our history. There would be no effect on the pantheon of struggle songs; it is only one phrase in one song that, in the words of the commission, “accentuates the chasms that were fostered before 1994 and which threatened to tear this society apart”. No such argument was made when the commission declared “kill the boer” to be hate speech in 2003. Also, the welcome attempt by the ANC to distance itself from the use of the slogan, calls into question the authenticity of its current jeremiads.

One might argue that singing of struggle songs, as a celebration or signifier of history, is worthy of protection. Generally, infringing a right under our constitution has to be justified under its limitation clause. It is through this process that utilitarian arguments can be brought into the analysis, such as whether a limitation is “reasonable and justifiable in an open and democratic society”. But, legally, section 16’s construction does not allow for any such balancing act on hate speech; it is unique in this regard. A finding that an utterance is hate speech is the end of the matter; presumably, because the constitution’s drafters accepted the risk presented by hate speech in a country like ours. For some, this result may appear counter- majoritarian, or undemocratic; if the majority’s urge is to sing the song, then all others, even minorities who feel threatened by the chorus, should sit quietly by. Ruminations of this nature have already surfaced in the political debate. Similarly, some academics have concluded that, on this basis, a finding that the utterances constitute hate speech will be bad for both the judiciary and democracy as a whole. However, such a judicial outcome would quite simply be the price of a living in a special type of democracy, one in which the government and all its people are bound jointly to a constitution founded in the mature spirit of reconciliation. No juvenile revisionism or odious race baiting should be allowed to distract SA from that.

Africa Must Lead on the Development of the Crime of Aggression

[Co-authored with Anton du Plessis, Head: International Crime in Africa Programme at the Institute for Security Studies. Appeared in ISS Today, 8 March 2010]

The first ten-year Review Conference of the International Criminal Court (ICC) will take place from 31 May – 11 June 2010 in Kampala, Uganda. Most states parties will be satisfied with the progress made by the Court since the adoption of its founding treaty, the Rome Statute, back in 1998. Supporters will be pleased that 110 countries have signed up to the ICC, that it is fully operational, and that it is actively investigating cases in five countries.

There have, however, been significant challenges along the way. For Africa, one of the lesser-known challenges relates to the limited progress that has been made on defining thecrime of aggression and agreeing on the process through which the ICC gains jurisdiction over the crime. States parties are now faced with the task of coming up with a workable way forward on this issue at the Review Conference.

The drafters of the Rome Statute gave the ICC jurisdiction over crimes against humanity, genocide, and war crimes. They also intended the Court to be given jurisdiction over the crime of aggression; however, at that time, the drafters could not agree on a legal definition of the crime. So although the crime of aggression was written into the statute in 1998, the Court’s jurisdiction will remain non-operational until agreement is reached on the definition.

Due to the complexity involved in legally defining aggression, a Special Working Group on the Crime of Aggression (SWGCA) was established in 2002 to work on a definition and submit its proposals for the Review Conference. The purpose behind prosecuting crimes of aggression is to hold accountable those individuals who instigate and engage in unjustified armed conflicts between states. The legal definition involves two parts: the elements that define when a crime of aggression has been committed, and the circumstances which give the ICC jurisdiction over the crime. In short: a ‘crime of aggression’ means the planning, preparation, initiation or execution of the use of armed force when not acting in authorised self-defence. The crime must be conducted by a person in a position to direct the actions of a sovereign state`s political or military branches. And the crime must be targeted against another sovereign nation.

The failure of the representatives at the Rome Conference in 1998 to agree on the definition of the crime of aggression was the result of both definitional and jurisdictional controversies. Certainly the most contentious hurdle was the role of the UN Security Council in triggering the ICC’s jurisdiction, in other words bringing crimes of aggression before the Court. Some states wanted to uphold the inherent power of the UN Security Council to decide whether an act of aggression should be prosecuted. Others, most notably countries from the developing south, wanted a greater say for the UN General Assembly and International Court of Justice.

These debates, which relate to the uneven nature of international criminal justice, remain heated, and resonate elsewhere too. Recently much debate has centred around the power of the UN Security Council to refer cases to ICC under article 13 of the Rome Statute. The Security Council also has the power, under article 16, to defer ICC cases for a period of 12 months – and the African Union has vocally called for the ICC’s case against President al-Bashir of Sudan to be deferred. For many African countries, the skewed institutional power of the UN Security Council creates an environment in which it is more likely that action will be taken against suspects from weaker states than those from powerful states, or those protected by powerful states. For example, the perception in Africa is that by referring the Darfur situation in Sudan to the ICC but not acting in relation to, for instance, Israel’s assault on Gaza, the UN Security Council is guilty of double standards. The same considerations are obviously at play in relation to the crime of aggression and any proposals aiming to give the UN Security Council exclusive authority to trigger the ICC’s jurisdiction over the crime.

African states are accordingly looking to use the upcoming Review Conference to voice their concerns regarding the Court’s structure and operation within this uneven geo-political landscape. In that regard it is not coincidental that the most contentious aspect of the crime of aggression (the role of the UN Security Council in triggering the Court’s jurisdiction) is co-extensive with many of the issues raised by African states in the context of the arrest warrant for al-Bashir. Second, and in a related manner, the issue of aggression touches on the question of the characterisation (as legal or illegal) of a particular use of force, which could potentially have serious consequences for the continent’s nascent regional security architecture, particularly insofar as humanitarian intervention is concerned.

It has surprised few then that at their last Ministerial Meeting in November 2009, African states parties rejected the structuring of aggression in a manner that grants the UN Security Council exclusive authority to trigger prosecutions. The continuity between this position on the crime of aggression and the controversial article 16 amendment which aims to trim to exclusive power of the UN Security Council to defer ICC cases (endorsed by African States Parties at the same meeting) is self-evident. Both seek to displace (or prevent) the Security Council’s hegemony in respect of the Court’s pursuit of international justice: one by providing a residual power to defer proceedings to the General Assembly, the other by preventing further power being given to the Council in respect of initiating prosecutions. More broadly, both share a common motif that challenges the asymmetrical nature of the international criminal justice order. Given this correlation, to the extent that African states might be able to force compromise on either issue, it would be tactically advantageous to capitalise on this inter-play.

Aside from concerns about the inequality of international criminal justice, African states have reason to fear that a Security Council-dominated prosecution regime for aggression has the potential to undermine the regional security architecture developed since the AU’s inception. This architecture, which boldly asserts a degree of autonomy in regional security issues, indirectly challenges the dominion granted by the UN Charter to the Council in respect of forcible interventions.

There is accordingly much at stake. Africa should be encouraged to take a bold, yet constructive, role in shaping the policy and practice of the Court in relation to these contentious, and developing areas of international criminal justice.