On 22 September 2020, the Constitutional Court will hear the case of Jonathan Dubula Qwelane v South African Human Rights Commission and Another (case no: 13/20). The Constitutional Court will decide whether section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) is unconstitutional and inconsistent with section 16 of the Constitution. Section 10 of PEPUDA defines what expression amounts to hate speech and therefore constitutes a limitation to the freedom of expression. SALC has been admitted as an amicus curiae in this matter and provides the Constitutional Court with a comprehensive analysis of international law looking specifically at hate speech and how it harms the rights and compromises the safety of the LGBTI community.
Jon Qwelane, then a journalist with the Sunday Sun tabloid newspaper, authored a homophobic article bearing the title “Call me names, but gay is NOT okay…” in 2008 which had the intention to harm, dehumanise and strip the gay community of their dignity. Qwelane was subsequently appointed as South Africa’s ambassador to Uganda by the Zuma administration in 2010 amidst widespread public opposition. In 2017, the Equality Court in Johannesburg held that Qwelane’s article constituted hate speech under section 10 of PEPUDA. In 2019, the Supreme Court of Appeal set the Equality Court judgment aside and concluded that section 10 of PEPUDA was overly vague and therefore unconstitutional and invalid. The matter is now before the Constitutional Court for confirmation.
Based on South Africa’s international obligations and the application of international law in South African law, SALC’s intervention provides the Court with the international law framework regarding (i) the limits to free speech and the constitutive elements of hate speech; and (ii) the principles in international human rights law regarding the rights of LGBTI persons.
In respect of hate speech and the protection of LGBTI persons, SALC conducts a comprehensive analysis of international law including jurisprudence from the African Commission on Human and Peoples’ Rights, the European Court on Human Rights and the Inter-American Commission on Human Rights as well as General Comments by the United Nations Human Rights Committee. On this basis, SALC illustrates that there is a determinable threshold in international law at which expression becomes hate speech. Therefore, SALC’s submission concludes that section 10 of PEPUDA is not overly vague since international law provides sufficient content to inform the language in section 10. Against this backdrop, SALC also points out that hate speech against LGBTI persons is prohibited under international law and that South Africa has an obligation and responsibility to ensure such protection. This would include not appointing a homophobic individual, who does not embody and uphold the constitution, as an ambassador where he would be a representative of the country and its values.
While international law protects the rights of all people to freedom of expression, that right carries special duties and responsibilities. These include the duty to refrain from speech that constitutes incitement and encouragement of hatred, discrimination, hostility or violence. The international law obligation to prohibit hate speech extends to hate speech about LGBTI people. South Africa therefore has an international obligation to prohibit hate speech against LGBTI people specifically. As such, it would be unlawful for South Africa to take an approach that would exclude LGBTI people from protection against hate speech. Generally, in international law, speech will reach the threshold of prohibited speech when it has the direct or indirect effect of inciting others to hold similar views, deepen discrimination and exclusion, or instigate violence. According to international law, discrimination based on gender is inextricably linked to discrimination based on sexual orientation. Therefore, the reference to sexual orientation in the Equality Act does not go beyond section 16(2) of the Constitution because inherent in the concept of ‘gender’ is one’s sexual orientation.
SALC’s submission seeks to show that ‘gender’ is not binary. This is because international law is moving towards a definition of gender as a socially constructed concept that is different from one’s biological sex. Gender produces vulnerabilities linked to the way societies organise male and female roles and how they exclude those who transgress such roles. Gender discrimination therefore is not only about the oppression of women, but it also entails discrimination and violence based on real or perceived gender, sexual orientation and gender identity.
International law protects the right to freedom of expression. However, international law also demands that states limit the right to free speech when such speech constitutes hate speech. Section 16(2)(c) of the Constitution is therefore consistent with international law.