[This is a guest post by Sarada Mahesh.]
The Constitutional Court of South Africa, on 27 November, 2020, delivered a landmark judgement that gave precedence to the right to freedom of speech (Economic Freedom Fighters v Minister of Justice).
Facts of the Case
Charges were levied against Mr. Julius Sello Malema, the president of a political party known as the Economic Freedom Fighters. The judgement highlighted three instances where the accused gave speeches where he allegedly made statements that incited citizens to occupy land that the State had failed to give them. He asked them to do so unapologetically, and without the fear of going to jail. The Prosecution charged him with Section 18 (2) (b) of the Riotous Assemblies Act, 1956, along with section 1(1) of the Trespass Act, 1959.
For the purposes of this article, we will focus on one of the two questions that the Court was required to answer – on the constitutionality of section 18(2)(b) of the Riotous Assemblies Act, 1956. The section reads as follows:
(2) Any person who (a) conspires with any other person to aid or procure the commission of or to commit; or (b) incites, instigates, commands, or procures any other person to commit, any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.
History of the Riotous Assemblies Act, 1956
Before going into the reasoning provided by the Court for both the questions, it is important to understand the history of the Act. The Act came into existence during the apartheid regime as a response to the landmark adoption of the Freedom Charter in 1955. The Defiance Campaign of 1952 was at its peak at that point with South Africans actively taking part in civil disobedience movements against the reigning power. The Riotous Assemblies Act was a re-enactment of the previous statute. Over the years, however, many provisions of this archaic law were repealed. Now, all that is left of the Act are its Preamble and sections 16, 17 and 18.
The Preamble of the Act, which the Court unanimously declared to be ‘symbolic of the iniquitous apartheid regime and utterly indefensible in (the) constitutional dispensation’, reads as follows:
To consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Union and matters incidental thereto, and the laws relating to certain offences.
It was argued by the applicants that the section generally, and more particularly the term ‘any offence’ was constitutionally invalid because it constituted an unreasonable restriction of the fundamental right to free expression.
Decision by the High Court
The High Court declared the section to be unconstitutional and invalid on two grounds. First, the section actively criminalised conduct that was protected under section 16 (1) of the Constitution. Section 16 (1) lays down the forms of expression that are protected by the Constitution, while section 16 (2) provides for the forms that fall outside this scope (propaganda for war, incitement of imminent violence, or certain kinds of advocacy of hatred).
While the objective of the section is similar to Article 19 of the Indian Constitution, the structure is different. Article 19 (1) (a) to (g) provide for the protection of certain rights regarding freedom of speech. Article 19 (2) to (6) provide for the reasonable restrictions on these rights. Section 16 (1) and (2) however are two different circles altogether. They provide for the types of expressions that can and cannot be protected under the Constitution. The equivalent of article 19 (2) is section 36 (1) of the Constitution. It lays down five tests that have to be fulfilled to justify limitations that are imposed on the right: the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose, and whether there exist less restrictive means to achieve the purpose.
Any limitation on the right of Article 16(1) must be tested against Article 36(1). The right to freedom of expression however does not extend to the speech under Section 16(2) – there is thus no question of imposing any limitation on these provisions. In the Indian context, it must also be noted that there tests are similar to the test laid down in the Puttuswamy I judgement with regard to restrictions on the right to privacy.
Secondly, the High Court highlighted that the objective of section 18 (2) (b) was to prevent crimes. However, it found the rationale of making the inciter compulsorily liable to the same extent as the actual perpetrator of the violence to be unreasonable.
Decision by the Constitutional Court (written by the Mogoeng CJ)
The aggrieved parties appealed to the Supreme Court, which did not confirm the decision of the High Court as it had made an incorrect interpretation. The reason was that the word ‘liable’ did not always mean ‘compulsory’. In fact, there had been cases where the inciter of the violence was given the same treatment as the actual perpetrator of the violence when it came to imposing sanctions.
However, it was reasoned that the acts have to be criminalised only if the pose a ‘real and substantial risk’ to the constitutional values. The Court also discussed the de minimus rule. It originates from the Latin maxim de minimis non curat lex which translates to the ‘law is not concerned with small things’. The rule does not apply to all ‘minor cases’ and is dependant on the discretion of the prosecutor, who can choose not to investigate into trivial matters if it is overburdened. The Court held that the exercise of the right to free speech should not depend on the likelihood of eventually being let off on the basis of this rule. Instead, the limitations on free speech could be recalibrated so as to respect the right.
The Court also considered the possibility of imposing lenient or appropriate sanctions in criminal cases keeping in mind the number of years it takes for cases to get resolved and the costs involved in litigation. The words ‘any offence’ failed to satisfy both these tests, and was in fact vague, uncertain and open to interpretation, thus posing a risk to the right of free expression. It was inconsistent with Section 16 (1) of the Constitution, and failed to fulfil the tests under Article 36 (1). The Court cautioned that the overbreadth of the legitimate purpose of the Government (crime prevention, in this case) should not be confused with the possibility of using less restrictive means of enquiry. Allowing a broad interpretation of the term ‘any offence’ could be applicable to any crime and have a negative impact on the constitutional values of free speech.
As an interim solution, the Court suggested that the term ‘serious’ be inserted in between the term ‘any’ and ‘offence’. It could not define the term ‘serious’ as it was pressed for time, but trusted that the judicial system would be able to define it on a case by case basis. Serious crimes include “murder, rape, armed robbery, human trafficking and corruption”, all of which are deemed mala fide.
Dissent by Maijedt J. (Jafta J. and Tshiqi J. concurring)
The three judges dissented on the following grounds:
First, they did not agree with the full judgement’s comparison of the idea of free speech in South Africa with that of the United States. The latter gave primary importance to its First Amendment – it was always given precedence by the Courts. South Africa however, had a different jurisprudence that was closer to countries like Europe and Australia. Judgements from these countries showed that factors such as public health and morality were given due consideration in questions relating to free speech.
Secondly, in relation to the point 1, the Courts in the jurisdictions considered – Europe and Australia – made punishable acts of incitement. This, they did, without resorting to whether the offence was serious or not. The dissenting judgement argued that the word ‘serious’ was vague and could be misused. Instead, prosecutorial decisions on what constituted ‘any offence’ must be trusted. This however, could be an issue, because the decision on the definition would be subject to the prosecutor in power at that point of time. “Incitement of imminent violence” which falls under section 16 (2) is a constitutionally unprotected speech. The provision does not use the word ‘serious’, hence making it incorrect for the Full Judgement to read in the word. Additionally, there was no recorded case of misuse of this provision in the past. (which is a weak argument that shouldn’t be considered).
Thirdly, while the inciting of violence might not show any demonstrable harm, it nevertheless causes unreasonable harm to society. The inciter had the intention to commit the crime and even took steps to realise it. The Courts must not wait for the crime to actually happen in order to punish it.
This is a reasonable argument, provided that the burden is on the State to prove the intention of the inciter beyond reasonable doubt.
While the decision of the Court to find Section 18 (2) (b) unconstitutional and invalid is important, it still left a lot of issues unclear. Going by its reasoning, a person who incites violence could only be punished if it was a ‘serious’ offence. Unlike the examples of serious crimes listed above, crimes relating to free expression are more fluid and open to interpretation. Consider the situation in countries like India, where leaders whose speech actually incited violence against a minority community, while those who protested against the Government without any actual impact were charged with sedition. It thus becomes important for Courts to handhold free speech cases, delving deeper into the jurisprudence of different countries and providing as much clarity as possible about what can and cannot be allowed.