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 Periodical article |
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| Title: | A critical view of the constitutional hate speech provision |
| Author: | Johannessen, Lene |
| Year: | 1997 |
| Periodical: | South African Journal on Human Rights |
| Volume: | 13 |
| Issue: | 1 |
| Pages: | 135-150 |
| Language: | English |
| Geographic term: | South Africa |
| Subjects: | constitutions 1996 freedom of speech |
| External link: | https://doi.org/10.1080/02587203.1997.11834940 |
| Abstract: | Section 16(2) of the freedom of expression provision in the final Constitution of South Africa 1996 is a new addition to the freedom of expression provision. Section 16(2) stipulates that the right to freedom of expression does not extend to propaganda for war, incitement to imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. This special internal limitation to the freedom of expression clause removes an entire area of speech beyond the ambit of the right to freedom of expression and consequently from the ambit of constitutional scrutiny. Thus the section essentially grants constitutional immunity to Parliament. The author argues that the clause is unnecessary, over-broad and goes beyond even the requirements of international law. Examples from other jurisdictions show that there are other avenues available to address and impose reasonable limitations on hate speech without depriving anyone of constitutional safeguards. This would have been a better approach for a new democratic South Africa to take in order effectively to break with the past in the field of hate speech regulation. Notes, ref. |
