THE African National Congress (ANC) chief whip’s office in Parliament stated recently that the party would "investigate creating a law or amending legislation to ensure that acts of racism and promotion of apartheid are criminalised and punishable by imprisonment".
This was clearly in response to the outcry over former estate agent Penny Sparrow’s "monkey" comments on social media, and the alleged "racial undertones" in a tweet by economist Chris Hart. Yet section 16 of the Constitution guarantees to the people of SA freedom of expression, except — in this context — advocacy of racial hatred that amounts to incitement to cause harm.
From this alone, we can conclude that the ANC’s intentions are ill-founded. The legal changes they hope to bring about will be, or, at least should eventually be, declared unconstitutional. The nature of freedom of expression is that people should be allowed to say unpopular, stupid, or even offensive things. If this were not so, then this guarantee need not have been in the Constitution, as we would be allowed to say only what all other people (and especially the government) agreed with.
The ANC chief whip’s office bases its reasoning on "dehumanisation" and "deprivation of dignity", but this is a slippery slope. Racism is certainly dehumanising and deprives us of our dignity, but so do a host of other daily occurrences. Would the ANC also consider legislation that criminalises extramarital affairs? I personally feel dehumanised when the professoriate requires me to write two examinations on one day. Would this, too, be criminalised due to the inhumane strain placed on students?
This is not to make light of the stupid and racist nature of Sparrow’s comments. She must feel the unanimous condemnation of the South African people and, as the Institute of Race Relations’ Sara Gon commented, like the rest of us must live with the (private, civil) consequences of what we say online. But this does not call for the force and violent coercion of the state to play a role.
We cannot chip away at freedom of expression even if we all agree that what was said was wrong. John Stuart Mill recognised this principle in his seminal essay, On Liberty, writing that even if everyone except one individual agreed about something, that one individual still has the right to air his contrarian view.
Perhaps we must also distinguish between people like Sparrow and people like Hart. Sparrow made, and continues to make, ignorant racist comments. However, Hart did not. Hart’s commentary amounted to more than 900 words, wherein he made the argument that SA must create more wealth, not simply transfer existing wealth.
Many, including me and entities such as the Free Market Foundation and the Institute of Race Relations, have also made this observation without receiving such an irrational overreaction.
New wealth is the most effective and speedy path towards economic transformation and empowerment for SA’s black majority. That single tweet of Hart, which formed a tiny part of his full argument, cannot be seen outside this context.
But even Sparrow’s ignorant and vile drivel must be allowed, whether or not it amounts to the same level of intellectual engagement as Hart’s. Freedom affords her this evil pleasure. Saying stupid, extremely offensive things should not be a crime, unless there is incitement to cause physical harm to someone’s person or property. This is an unpopular opinion, but we must remember that censorship of speech is a slippery slope with no boundaries.
If we allow the government to censor and criminalise anything that may be offensive in any given circumstance, we will soon not be allowed to utter anything at all. If we continue down this path of reckless paternal statism to regulate our expression, the apartheid regime, long dead, will end up the winner in the war of ideas.
• Van Staden is a final year law student at the University of Pretoria and regional director of Students For Liberty
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