Freedom of expression is sacrosanct
20 November 2023
Section 16 of the Constitution states unambiguously that “everyone has the right to freedom of expression.” The Constitution also guarantees the right to peaceful assembly and protest.
Accordingly, the 30 000 pro-Palestinian demonstrators who marched through Cape Town on 11 November had a clear right to demonstrate and to express their solidarity with the Palestinian people in the ongoing war between Israel and Hamas.
The much smaller group that met to pray for peace in the Israel/Gaza conflict on the Sea Point promenade on 12 November had an equal right to gather and to express their views. The pro-Palestine group that broke up and harassed their meeting had no right whatsoever to do so. They also had no right to confront SAPS and to ignore orders to disperse peacefully. Their action was a significant infringement of the prayer group’s constitutionally protected rights to free speech and to demonstrate.
Section 17 of the Constitution is clear: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The disruption of the prayer rally highlights a profound challenge to the core values underpinning our democracy. Democracy, fundamentally, offers a platform for diverse voices to coexist, allowing all citizens the right to hold different beliefs and opinions, and to express them freely. Restricting this right threatens the very cornerstone of our democracy - a right that, given our country’s past, should be sacrosanct.
There are also limitations to freedom of expression in section 16 of the Constitution. It does not extend to propaganda for war; incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to do harm. Some of the slogans shouted by the pro-Palestinian demonstrators may have breached these requirements.
In South Africa’s complex multicultural and multi-religious society, there is a special need for tolerance. There is also a special need for political parties not to abuse such situations and to sweep up emotions in their efforts to make political gains.
The clash of opinions this weekend draws urgent attention to the responsibility of the Government, the SA Human Rights Commission and the South African Police Services to manage divergent views and to ensure that the rights of all citizens are observed. As noted in a statement condemning the violent disruption, Cape Town Mayor Geordin Hill-Lewis emphasised that, “It is the job of the South African Police and law enforcement agencies to protect [the right to protest], and the responsibility of every citizen to respect it.”
As a nation, it is crucial to reassert our dedication to the principles that unite us. The constitutional right to express ourselves and gather peacefully is more than a legal protection; it is a collective commitment to uphold the democratic spirit defining us as South Africans.
Issued by FW de Klerk Foundation, 20 November 2023
