The government is engaged in censorious ideological gerrymandering, warns FMF
‘Taken together, these laws and bills represent an almost comprehensive package that existentially threatens the continued free and open nature of South Africa’s public discourse.’ – Martin van Staden, Head of Policy at the Free Market Foundation
28 November 2023
The Free Market Foundation (FMF) today published a policy brief unpacking nine existing and proposed laws that manipulate, if not outright censor, democratic discourse. Each poses an unacceptable risk to freedom of association and expression, but together represent an existential threat to democracy in South Africa. The brief urges that these pieces of legislation must be undone.
In the brief, author Martin van Staden, FMF Head of Policy, articulates that ‘what these [legislative] measures have in common is that they either explicitly empower (or even require) government to engage in censorious or repressive conduct toward non-governmental organisations and even commercial entities (broadly, civil society) that express views or peacefully and persuasively advocate policy alternatives to those embraced by the incumbent government, or they implicitly allow government to do so.’
According to Van Staden, the measures that these pieces of legislation permit would undermine constitutional rights and freedoms if taken in isolation, but when taken together ‘they threaten the very rules of South Africa’s democratic game’.
Until now, government has made little use of these repressive powers. This is however immaterial, argues Van Staden. ‘The presence of measures of this nature on the Statute Book is reason enough to give democrats and watchdogs pause’, he explains.
In the policy brief, Van Staden considers the risk to freedoms posed by, among others:
The Equality Act (2000), in which misdefined ‘equality’ and ‘non-discrimination’ are used as fig-leaves to obscure a political agenda to control the contours of political discourse.
The Equality Amendment Bill (2021), which proposes to force all South Africans to adopt the incumbent government’s narrowly ideological conception of social justice in their daily conduct, without room for dissent.
The Terrorism Act (2004), which defines ‘terrorist activity’ too broadly and vaguely so as to cover even legitimate, pro-democratic expression.
The Hate Speech Bill (2023), which contains a raft of questionable and problematic provisions that directly undermine free expression. It feigns the creation of ‘exceptions’ to the criminalisation of hate speech, but these are entirely circular and exempt nothing in reality. In other words, even journalists who report on hate speech might have their reporting criminalised.
The Spy Bill (2023), which is undergoing changes itself but could severely hamper the ability of non-governmental organisations to operate freely and independently of political diktat.
The FMF urges that the measures and the others discussed in the brief be undone by Parliament or by the courts. Failing this, civil society must prepare itself to constitutionally resist the harms that could be done unto it should government operationalise what these measures empower it to do.
Issued by Anneke Burns, FMF Publicist, 28 November 2023
