The recent French terrorist attacks on the publication Charlie Hebdo has been a source of controversy around the world. Human lives were lost because certain people resorted to violence over a cartoon depicting the Prophet Muhammed. If I understand what commentators in theology say about Islam, pictures and idols are forbidden. Publication of a cartoon depicting the prophet is not new. In 2005, Denmark’s Jyllands-Posten published the prophet with a bomb in his head scarf. This, too, was the source of many protests all over the Muslim world and attacks on the Danish. This article looks at publication of an image of the prophet that goes against the fibres of Islam to that of freedom of expression as enshrined in Section 16 of the Constitution of the Republic of South Africa¹.

South Africa’s Constitution is revered throughout the world as one that is inclusive and empowers its people with broad-spectrum rights. It is celebrated not only for the fact that the Bill of Rights is diverse but also for the fact that South Africa emerged out of apartheid with rights applicable to all who live in it. It has been twenty years since we became a democratic nation and our courts have seen many constitutional cases in the Constitutional Court, the highest court in the land. 

Section 16 reads as follows:
(1) Everyone has the right to freedom of expression, which includes-
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to-
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

On a reading of section 16 it is evident that the right to freedom of expression is wide but is limited in terms of subsection 2 of section 16. Three categories are enumerated in section 16(2) that limit freedom of expression. Speech that falls within the ambit of section 16(2)(c) of the Constitution is typically referred to as ‘hate speech’.  There is a plethora of cases dealing with hate speech in the equality courts and it is not the intention of this article to traverse the reasoning of each and every case before the (equality) courts.

Some guidance as to how section 16 should be understood is found in the case of Afriforum and Another v Malema². It was stated that “the true yardstick of hate speech is neither the historical significance thereof nor the context in which the words are uttered, but the effect of the words, objectively considered, upon those directly affected and targeted thereby”.³ However, section 16 has also been described as a right within “a web of mutually supporting rights”⁴ which means that it must be seen in context of other rights such as inter alia rights to dignity (section 10) and freedom of religion, belief and opinion (section 15).

Fleming Rose, cultural editor of Jyllands-Posten, was interviewed by Stephen Sackur, host of BBC’s Hardtalk, which aired in South Africa on Wednesday, the 14th of January 2015. Sackur posed the question to Rose whether or not Rose would not have printed the cartoon of the prophet if he knew what would happen. Rose pointed out that if one does not publish the article, the way of violence and intimidation will triumph that of speech. He said that if they had not printed the article because of violence, then that is what people will resort to because they know if they act violently, speech will be limited. However to persist with the printing of the cartoon, one is seen to be oblivious to the deaths of people. It is a dilemma, he concluded.

I mention the interview with Flemming Rose because Charlie Hebdo has decided to reprint the depiction of the prophet on its front cover. I gather that this may be a response to the attacks on their publication house. The use of violence will not be used as a source to deter speech is what I think they are saying. The question however still remains - would the depiction of the prophet be contrary to South Africa’s freedom of expression provision as expressed in the Constitution?  

From the onset, let me state that I do not wish to pronounce judgment. Let us leave that to the judges but I may be able to give some insight as to what may be said. The depiction of the prophet is offensive to Muslims because Islam forbids it. It is one of the tenets of Islam. To therefore publish a picture depicting the prophet is disrespectful towards that religion. But is it against section 16 of the Constitution?

Section 16(2)(a) states that freedom of expression will not extend to propaganda of war. I do not think that a depiction of the prophet is propaganda of war. Similarly, it is not incitement of imminent violence because nobody is stirring a group on to attack Muslims. I think it fails in that regard. Section 16(2)(c) is as close to the catch-all provision which states that freedom of expression will not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. I do not think that a depiction of the prophet is based on hatred of Islam. It may be disrespectful but I do not think it is hatred. Let us assume that I am wrong and it does advocate hatred of Islam. Does it then constitute incitement to cause harm? The Oxford English Dictionary defines incite as to urge or stir up. I do not think so.

Freedom of expression is a right that ought to be cherished especially given South Africa’s history on the treatment of those who spoke in defiance of the government. In the case of S v Mamabolo⁵, that “what is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law”.⁶ Whilst it may not hold superior status than another constitutional right, it is worthy of strong defence as the alternative is to not speak freely. Speech may offend and it may be disrespectful - it is a consequence of living in a constitutional democracy. However, it may not cause or incite violence or harm. Je suis Charlie.

Written and prepared by Kirith P. Haria
BOUWER KOBELI MORABE

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Notes:
1 Act number 108 of 1996; hereinafter referred to as the “Constitution”.
2 2010 (5) SA 235 (GNP)
3 Afriforum at 239
4 South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC)
5 2001 (3) SA 409 (CC)
6 Mamabolo at para 41