The criminal offence of incitement to commit any offence under the Riotous Assemblies Act is constitutionally invalid to the extent of its impermissible limitation of the fundamental right of free expression
March 3, 2021
Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another
 ZACC 25
Constitutional Court of South Africa
Mogoeng CJ, Jafta, Khampepe, Madlang, Majiedt, Mhlantla, Theron, Tshiqi JJ and Victor, Mathopo AJJ
November 27, 2020
Reported by Ian Otenyo & Faith Wanjiku
Criminal Law – inchoate crimes – incitement of another to commit an offence – where the appellant incited citizens to occupy land without permission – where the appellant was held to be liable for trespass as the actual perpetrators – whether section 18(2)(b) of the Riotous Assemblies Act on the criminal offence of incitement to commit any offence was inconsistent with the right to free expression, as enshrined in section 16(1) of the Constitution, by reason of its over breadth – Constitution of the Republic of South Africa, 1996, section 16 (1) (2), Riotous Assemblies Act, 1956, section 18(2) (b)
Brief facts: The appellant was prosecuted for inciting other people to commit trespass in contravention of section 18(2) (b) of the Riotous Assemblies Act read with section 1(1) of the Trespass Act. The appellant had encouraged people at several gatherings to occupy any land they like, without lawful permission or reason. The appellant challenged the constitutional validity of section 18(2) (b) of the Riotous Assemblies Act. The trial court held that the section was unconstitutional because it compelled a court to impose the same punishment on the inciter as on the actual perpetrator of the offence. The trial court however dismissed the contention that section the section was overbroad and that the Trespass Act was not applicable.
The trial court also held that the limitation of section 1818(2)(b) of the Riotous Assemblies Act 17 of 1956 was reasonable and justifiable in terms of section 36 of the Constitution. The court’s rationale was that the purpose of the said section was crime prevention.
Aggrieved by that outcome, the appellant approached the Constitutional Court.
whether section 18(2)(b) of the Riotous Assemblies Act on the criminal offence of incitement to commit any offence was inconsistent with the right to free expression, as enshrined in section 16(1) of the Constitution, by reason of its over breadth.
Relevant provisions of the law
Constitution of the Republic of South Africa, 1996
Section 16 (1) (2)
Freedom of Expression
1)Everyone has the right to freedom of expression, which includes—
a)freedom of the press and other media;
b)freedom to receive or impart information or ideas;
c)freedom of artistic creativity; and
d)academic freedom and freedom of scientific research.
2) The right in subsection (1) does not extend to—
a)propaganda for war;
b)incitement of imminent violence; or
c)advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitute incitement to cause harm.
Limitation of rights
1)The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
a) the nature of the right;
b) the importance of the purpose of the limitation;
c) the nature and extent of the limitation;
d) the relation between the limitation and its purpose; and
e) less restrictive means to achieve the purpose
2)Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
Riotous Assemblies Act, 1956
Attempt, conspiracy, inducing another person to commit an offence
2.)Any person who-
a)conspires with any other person to aid or procure the commission of or to commit;
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.
Held by majority
- Section 18(2) (b) of the Riotous Assemblies Act criminalised incitement to commit any offence. That kind of incitement was undoubtedly a form of expression that was ordinarily protected by section 16(1) of the Constitution. It therefore constituted a limitation of protected expression. Whether that limitation was reasonable and justifiable in an open and democratic society based on the values of human dignity, equality and freedom, was the question the court should wrestle with.
- Whenever a fundamental right had been limited by a law of general application, it was required of the State or any party seeking to uphold the limitation to give good reason for a court to excuse that interference by giving proper context to section 36 of the Constitution proportionality-based justification analysis.
- To assess limitation, determination had to be made on the proportionality between the extent of the limitation of the right considering the nature and importance of the infringed right, on one hand, and the purpose, importance and effect of the infringement provision. The limitation analysis would therefore first consider the extent of the limitation of the right caused by section [18(2)(b)], and will then turn to the purpose, importance and effect of section [18(2)(b)] of the Constitution. These were the two issues whose relative weight would determine the outcome of the limitation analysis. That exercise entailed a reflection on the historical origins of the two sections.
- Over 26 years ago, expression was so extensively and severely circumscribed that a person could be arrested, banned, banished or even killed by the apartheid regime for labelling as unjust, what everyone now has come to accept as unjust. Inciting people to protest against apartheid, a crime against humanity, or to break its unjust laws, was not only criminalised but could also attract untold consequences. Thought control or enforced conformity was virtually institutionalised. Free expression was a right or freedom so dear to South Africans and critical to the democracy and healing of divisions in the country’s past. That right ought not to be interfered with lightly, especially where no risk of serious harm or danger existed.
- For a limitation of free expression to be permissible, it should be reasonable. Legislation that sought to limit free speech should curb incitement of offences that seriously threaten public interest, national security, the dignity or physical integrity of individuals and South African democratic values.
- Common law criminalised incitement that could lead to the high risk of a dangerous situation developing. Punishing that kind of incitement was meant to achieve the deterrence of future crime and to restrain the dangerous offender. The risk should be fairly high and the situation sought to be created, dangerous. The offence existed to deter not just any offender, but a dangerous one, who posed a serious threat.
- Citizens ought to enjoy the liberty to express themselves in support of or opposition to anything or any law, within the confines of the overall thrust of section 16(1) of the Constitution. Speaking out or advocacy against laws or offences believed to be unjust ought not to be easily proscribed by statute.
- The failure by the State to provide reasonable grounds to justify the sweeping nature of the limitation, that took away free expression in relation to incitement to commit any offence, should result in a failure by section 18(2)(b) of the Riotous Assemblies Act to meet the test under section 36(1) of the Constitution. Section 18(2)(b) not only exposed citizens to the risk of arrest and prosecution for minor offences committed in the course of free expression, but also had the potential to inhibit many from freely expressing themselves to avoid falling prey to the vast or sweeping net of any offence. That provision did not promote but prevent all free expression in the form of incitement or advocacy. As such, the court proposed the interim insertion of the word serious between the words any and offence.
- A right in the Bill of Rights should be promoted, protected, respected and fulfilled. It could only be limited when doing so was in line with South African foundational values. Where there was a less restrictive means to avoid the gross invasion of a guaranteed right, then a limitation that needlessly strayed beyond protected bounds should be arrested.
- Section 18(2) (b) of the Riotous Assemblies Act was unconstitutional to the extent of its inconsistency with section 16(1) of the Constitution.
Per Majiedt, Jafta and Tshiqi, JJ (Dissenting opinion)
- With regard to the constitutionality of section 18(2)(b) of the Riotous Assemblies Act, the section’s limitation of the right to freedom of expression in section 16(1) of the Constitution was reasonable and justifiable as envisaged by section 36(1) of the Constitution. The dissent was hinged on two grounds. First, the main judgment’s outlook on the crime of incitement and how it should be treated in a robust, democratic Republic like ours and, second, its approach to the justification analysis of the limitation of freedom of expression.
- The preamble was vile, symbolic of the iniquitous apartheid regime and utterly indefensible in South Africa’s constitutional dispensation. Its retention in the Riotous Assemblies Act, despite numerous repeals, was inexplicable and most unfortunate. However, that did not, in and of itself, taint the constitutionality or utility of section 18(2)(b) of the Riotous Assemblies Act (the impugned provision).
- The court should take great care not to discard the umbrella of incitement in the impugned provision while the Republic was in the relentless downpour of rampant crime. It would be remiss of the court to ignore the utility of that section because it was previously used as a means to suppress political speech, when it undoubtedly served to protect the rule of law and the rights of others in South Africa’s constitutional democracy.
- The retention of the offence of incitement served the purposes of crime prevention. It was well-established that, like all inchoate crimes, the reason for the existence of the crime of incitement was the need to deter future crime. Thus, a coordinated planning of crime was deterred. To that end, the crime of incitement was needed to protect the person incited from corruption.
- The right to freedom of expression was the case with all rights in the Bill of Rights not and should not be regarded as absolute. The section 16(1) right could be limited by a law of general application that complied with section 36 of the Constitution. In other words, the Constitution expressly allowed the limitation of expression that was repulsive, degrading, offensive or unacceptable to the extent that the limitation was justifiable in an open and democratic society based on human dignity, equality and freedom.
- Land reform was the most heated topic under discussion. While landlessness evoked deep emotions of deprivation and despair and engender feelings of hopelessness, frustration and justifiable apoplexy, they could not justify incitement to commit crime. Vigorous public debate and heated political discourse on that burning issue should continue unfettered, as long as it did not become incitement to commit crime.
- People should not be impelled by intolerable living conditions to resort to land invasions. Self-help of that kind should not be tolerated, for the unavailability of land suitable for housing development was a key factor in the fight against the country’s housing shortage.
- The introduction of seriousness as the resultant reading-in appeared to be a usurpation of the law-making function of the legislature. A reading-in of that nature, where there was a range of polycentric choices for the Legislature to choose from, could go too far and rub against the separation of powers principle.
- The order of the trial court that declared section 18(2)(b) of the Riotous Assemblies Act 17 of 1956 unconstitutional and invalid to the limited extent dealing with sentence, was set aside.
- Section 18(2)(b) of the Riotous Assemblies Act is inconsistent with section 16(1) of the Constitution and invalid to the extent that it criminalised the incitement of another to commit any offence.
- The operation of paragraph 3 was suspended for a period of 24 months from the date of the handing down of this judgment to enable Parliament rectify the constitutional defect
- During the period of suspension of the order of invalidity, section 18(2)(b) of the Riotous Assemblies Act should be read as follows: (2) Any person who—(b) incites, instigates, commands, or procures any other person to commit, any [serious] offence, whether at common law or against a statute or a 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.
- The reading-in will fall away when the correction of the specified constitutional defect by Parliament comes into operation.
- Should Parliament fail to cure the defect within 24 months within an extended period of suspension, the reading-in will become final.
Relevance to Kenya’s legal system
Article 33 of the Constitution of Kenya, 2010 provides for the freedom of expression which includes the freedom to seek, receive or impart information. The article further states that the freedom of expression does not include incitement to violence and that every person should respect the reputation of other people while exercising the right to freedom of expression.
Article 24 (1) of the Constitution of Kenya, 2010, provides for the limitation of rights and fundamental freedoms. It states that a right or fundamental freedom in the Bill of Rights can be limited by law only to the extent that the limitation is reasonable and justifiable in an open and justifiable society based on human dignity, equality, and freedom, taking into account all relevant factors including- nature of the right or fundamental freedom, the importance of the purpose of the limitation, the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
Section 96 of the penal code deals with Incitement to violence and disobedience of the law. It penalizes any person who utters, prints or publishes any words, or does any act which is calculated to bring death or physical injury to any person; or cause damage of any property; or to prevent by unlawful means the enforcement of any written law or to lead to disobedience of any such law, would be guilty and liable to imprisonment for a term not exceeding five years.
Section 391 of the Penal Code criminalises the act of inciting others to commit an offence. The section provides that any person who incites another to do any act of such nature that if the act were done an offence would thereby be committed, is guilty of an offence and would be liable to punishment.
In the case of Geoffrey Andare v Attorney General & 2 others  eKLR, the basis of the petition was that the Kenya Information and Communication Act criminalises publication of certain information in vague and overbroad terms, has a chilling effect on the guarantee to freedom of expression. The court stated the following:
The importance of freedom of expression including freedom of the press to a democratic society cannot be over-emphasised. Section 29 imposes a limitation on the freedom of expression in vague, imprecise and undefined terms that go outside the scope of the limitations allowed under Article 33 (2) of the Constitution. The respondents have not been able to show that such limitations are permissible under Article 24 of the Constitution.
Just like the South African court in the above case, the Kenyan courts assess an impugned section of an Act to establish if it is reasonable in its limitation of a fundamental freedom or right before declaring it unconstitutional.
In the case of Ngunjiri Wambugu v Inspector General of Police, & 2 others  eKLR, the court was dealing with the issue whether the petitioner was justified in seeking limitations to the exercise of freedom of assembly, demonstration, picketing and petition as provided for under article 37 of the Constitution of Kenya, 2010. The court stated that:
Rights can only be enjoyed to the extent that they do not interfere with other people’s rights as the constitutional rights and freedom of the individual are subject to limitations and are not absolute as they are designed to ensure, that they do not prejudice the rights and freedom of others or public interest. The court further stated that there should be an element of deterrence that would guide demonstration to maintain peace, law and order as in absence of further regulation on the exercise of the freedom, demonstrations would most likely not maintain peace, law and order.
Kenyan courts are keen on striking a balance between individuals exercising their rights to freedom of expression and other parties affected in the course of such rights being exercised. In the case of Jacqueline Okuta & another v Attorney General & 2 others  eKLR, the court stated that:
A common way of determining whether a law that limits rights is justified is by asking whether the law is proportionate. Although it is commonly used by courts to test the validity of laws that limit constitutional rights, proportionality tests can also be a valuable tool for law makers and others to test the justification of laws that limit important (even if not constitutional) rights and principles.
The court in the case of Wilson Olal & 5 others v Attorney General & 2 others  eKLR dealt with the issue of balancing rights of demonstrators and non-demonstrators in the following fashion:
The right under article 37 must be exercised peacefully. And it is important to emphasise that it is the holders of the right who must assemble and demonstrate peacefully. It is only when they have no intention of acting peacefully that they lose their constitutional protection.
South Africa’s apex court amended the statute in acknowledgement of unsettled historical land injustices, and to create an open environment where robust public discourse can take place without individuals being silenced by the law against incitement.
The case could be instructive to Kenyan courts when faced with a matter where they have to determine if statements made amounted to incitement or fell within the purview of freedom of expression. The Constitutional Court of South Africa went to the extent of amending a piece of legislation just to get rid of the blanket condemnation of any act that was deemed to be an offence by statute. The insertion of the word serious in the South Africa’s Riotous Assembly Act meant that the outcome of a speech made in the course of exercising freedom of expression had to be so severe in the way it affected the public or other people for it to be termed as incitement.