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Kenya Law / Blog / Case Summary: Inclusion of the word hurtful in section 10(1) of the Equality Act to constitute hate speech is vague and cannot be justified resulting in it being unconstitutional as it limits section 16(1) of the Constitution on freedom of expression

Inclusion of the word hurtful in section 10(1) of the Equality Act to constitute hate speech is vague and cannot be justified resulting in it being unconstitutional as it limits section 16(1) of the Constitution on freedom of expression

Qwelane v South African Human Rights Commission and Another [2021] ZACC 22

CCT 13/20

Constitutional Court of South Africa

Khampepe, Madlanga, Majiedt, Mhlantla, Theron, Tshiqi, JJ and Victor, Mathopo AJJ

July 30, 2021

Reported by Faith Wanjiku

Download the Decision

Constitutional Law –Bill of rights – right to freedom of expression- where hate speech in section 10 (1) of the Equality Act included the word hurtful as one of its elements – where section 10 of the Equality Act on prohibition of hate speech was impermissibly vague due to inclusion of the word hurtful – whether speech that was merely hurtful and considered hate speech, set the bar rather low- whether section 10 of the Equality Act on prohibition of hate speech led to an unjustifiable limitation on freedom of speech on section 16 of the Constitution for inclusion of the word hurtful in the provision and the prohibited ground of sexual orientation - what would the appropriate remedy be if the constitutional challenge was successful – Constitution of the Republic of South Africa, 1996, sections 16, 36, 172 (1); Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, sections 1, 10.

Statutes- interpretation of the statutory provisions – principles for interpretation of statutory provisions-what were the fundamental tenets in interpretation of the statutory provisions.

Statutes- interpretation of statutory provisions – section 10 (1) 9a)- (c) of the Equality Act- prohibition of hate speech- whether section 10 of the Equality Act on prohibition of hate speech entailed a subjective test of the target group perception or objective test of a reasonable reader to determine its constitutionality – Constitution of the Republic of South Africa, 1996, section 39 (2); Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, section 10.

Statutes interpretation of statutory provisions – section 10 (1) 9a)- (c) of the Equality Act- prohibition of hate speech–whether the impugned section on prohibition of hate speech had to be read disjunctively to prohibit mere private communication or conjunctively for a contextual and purposive interpretation – Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, section 10.

Brief facts:
Mr Qwelane, (the applicant), a popular columnist, penned an article titled “Call me names – but gay is not okay”, which was published by the Sunday Sun newspaper in 2008. In the article, the applicant compared gay and lesbian people to animals and postulated that they were responsible for the rapid degeneration of values in society. The article was accompanied by a cartoon depicting a man on his knees next to a goat, appearing in front of a priest for their nuptials. A speech bubble linked to the priest contained the text: “I now pronounce you man and goat”. The caption above the cartoon read: “[w]hen human rights meet animal rights”. The applicant was not the author of the cartoon, nor was he aware of it before its publication. The article was also an endorsement of the former Zimbabwean President Robert Mugabe’s strident remarks reviling homosexuals by comparing them to animals.
The article was met with a public outcry, and the South African Human Rights Commission (SAHRC) received over 350 complaints. The SAHRC referred the hate speech complaint to the Equality Court. In response, the applicant instituted a constitutional challenge against section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act), which defined and prohibited hate speech. The proceedings were consolidated for hearing before a single judge sitting as both the Equality Court and the High Court of South Africa, Gauteng Local Division, Johannesburg (High Court).
In the High Court, the applicant argued that section 10(1) read with sections 1, 11, and 12 of the Equality Act were too broad in that they unjustifiably limited the right to free expression. Further, he argued that section 10(1) was impermissibly vague, especially when it was read with section 12 of the Equality Act. The High Court dismissed the applicant’s over breadth challenge. It reasoned that section 10(1) of the Equality Act was not overbroad because it could be read in conformity with section 16(2)(c) of the Constitution of South Africa, 1996 (Constitution) and passed the limitations test pursuant to section 36 of the Constitution. Similarly, the High Court dismissed the vagueness challenge, as the proviso in section 12 qualified section 10(1). Ultimately, the applicant’s statements constituted hate speech as contemplated in section 10(1) of the Equality Act.
The High Court ordered that the applicant tender a written apology to the LGBTI+ community and pay the costs of proceedings. Discontented with the High Court’s decision, the applicant appealed to the Supreme Court of Appeal. In a unanimous judgment, the Supreme Court of Appeal upheld the finding on over breadth and held that the impugned section was inconsistent with the provisions of section 16 of the Constitution, and was therefore invalid. Aggrieved, the applicant approached the Constitutional Court.

Issues:

  1. Whether section 10 of the Equality Act on prohibition of hate speech entailed a subjective test of the target group perception or objective test of a reasonable reader to determine its constitutionality.
  2. Whether section 10(1)(a)-(c) of the Equality Act on prohibition of hate speech had to be read disjunctively to prohibit mere private communication or conjunctively for a contextual and purposive interpretation.
  3. Whether section 10 of the Equality Act on prohibition of hate speech was impermissibly vague due to inclusion of the word hurtful.
  4. Whether section 10 of the Equality Act on prohibition of hate speech led to an unjustifiable limitation on freedom of speech on section 16 of the Constitution for inclusion of the word hurtful in the provision and the prohibited ground of sexual orientation in section 1.
  5. What would the appropriate remedy be if the constitutional challenge was successful?
  6. What were the fundamental tenets in interpretation of the statutory provisions?

Relevant provisions of the law Constitution of the Republic of South Africa, 1996 Section 16- 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 constitutes incitement to cause harm.

Section 36-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.

Section 39 (2) – Interpretation of Bill of Rights 2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 Section 1 –xxii – ‘prohibited grounds’ are- (a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or (b) any other ground where discrimination based on that other ground— (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).

Section 1(b) any other ground where discrimination based on that other ground— (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).

Section 10(1)- prohibition of hate speech Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to— (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.

Section 10(2) – prohibition of hate speech Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.

Section 12 – prohibition of harassment No person may— (a) disseminate or broadcast any information; (b) publish or display any advertisement or notice, that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

Held:

1. The Equality Act had three main objectives:

a) It sought to prevent and prohibit unfair discrimination from thriving in the society by giving effect to section 9(4) of the Constitution.
b) It aimed to protect and advance categories of persons disadvantaged by unfair discrimination as envisaged in section 9(2) of the Constitution.
c) It facilitated the State’s compliance with its international law obligations.

2. The preamble to the Equality Act explicated that its overarching goal was to steer the journey to an equal and democratic society by, amongst other things, eradicating inequality, transforming the society and embracing the diversity. The Equality Act aspired to heal the wounds of the past and guide the country to a better future. That commitment was fulfilled by Parliament, pursuant to section 9(2) of the Constitution. One of the ways in which the Equality Act realised that commitment was through prohibiting hate speech in section 10. The Legislature was alive to the reality that unfair discrimination could be perpetuated by both conduct and the dissemination of words (or more broadly, through expression). Through that prism, section 10 was located at the confluence of three fundamental rights: equality, dignity and freedom of expression.

3. The Equality Act in general, and the impugned section in particular, had to be understood in the context of the obligation imposed on the State in terms of section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights. That was an obligation that emanated from the transformative objective of the Constitution. The ambit of that obligation was both positive and negative. It required of the State not only to refrain from infringing on fundamental rights, but also to take positive steps to ensure that those rights were realised.

4. A fundamental tenet of statutory interpretation was that the words in a statute had to be given their ordinary grammatical meaning, unless to do so would result in an absurdity. There were three important interrelated riders to that general principle, namely:

a) That statutory provisions should always be interpreted purposively;
b) The relevant statutory provision had to be properly contextualised;
c) All statutes had to be construed consistently with the Constitution, that was, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity.

5. The Constitution required that judicial officers read legislation, where possible, in ways which gave effect to its fundamental values. Consistently with that, when the constitutionality of legislation was in issue, they were under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as was possible, in conformity with the Constitution.

6. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) entrenched the right to freedom of expression, but restricted that right when necessary. Article 20 limited expression if it was hate speech, by providing that any advocacy of national, racial or religious hatred that constituted incitement to discrimination, hostility or violence would be prohibited by law. The ICCPR called upon state parties to adopt legislation to enforce those provisions. In addition, the Equality Act expressly sought to implement the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). From a regional perspective, the African Charter on Human and Peoples’ Rights (Banjul Charter) also entrenched the right to freedom of expression, coupled with obligations to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

7. The right to freedom of expression in international law contained two parts; the first imposed on states the obligation to protect the right to free speech, the second made it equally mandatory for States to prohibit hate speech.

8. The objective test in section 10(1) of the Equality Act implied in the terminology used to articulate it, that an intention would be deemed if a reasonable reader would so construe the words. Because the objective test of the reasonable reader was to be applied, it was the effect of the text, not the intention of the author, that was assessed. It was consistent with the jurisprudence concerning similar issues. An objective standard gave better effect to the spirit, purport and objects of the Bill of Rights. On the one hand, if it were based on the subjective perception of the target group, it would unduly encroach on freedom of expression, since claims could be based on a multiplicity of trivial actions by hypersensitive persons. On the other hand, if it were based on the subjective intention of the speaker, the threshold for civil liability would be considerably higher than usual.

9. The Supreme Court of Appeal erred in finding that paragraphs (a)-(c) of section 10(1) had to be read disjunctively. The absence of the conjunction and between the paragraphs, accentuated by the Supreme Court of Appeal in its reasoning, was countered by the absence of the disjunction or. That was therefore a neutral factor. On a disjunctive reading, section 10 would prohibit mere private communication which could reasonably be construed to demonstrate a clear intention to be hurtful, that was an overly extensive and impermissible infringement of freedom of expression.

10. In striving to interpret the section in a constitutionally compliant manner, provided that such interpretation could be reasonably ascribed to the provision, the section 10 was reasonably capable of a conjunctive reading. That reading was thus called for. That approach also advanced a contextual and purposive interpretation. It was buttressed by the fact that: prohibiting hurtful expression would undermine the ability to offend, shock and disturb; a disjunctive reading was not required by international law; and the impugned provision’s title made it clear that it dealt with the prohibition of hate speech. Furthermore, and critically, a disjunctive reading would render the impugned section unconstitutional, since merely hurtful speech, with no element of hatred or incitement, could for example constitute prohibited hate speech. That would be an impermissible infringement of freedom of expression as it would bar speech that disturbed, offended and shocked.

11. The Constitution required not only one be reactive to incidences or systems of unfair discrimination, but also pre-emptive. There was need to act after the damage had occurred where so required, but, importantly, it also required to act to ensure that it did not occur. The law did not require a causal link. In addition, that finding also disregarded the compelling, uncontested evidence in the Equality Court that graphically demonstrated the pervasive past violence and general enmity against members of the LGBT+ community. That, in turn, demonstrated the potential harm contained in the article. The difficulty in determining actual harm against the LGBT+ community was indicative of the hideous nature of hate speech committed against the target group. That there was no requirement for a causal connection was clear from the Equality Act itself. To require a causal link would in and of itself undermine the very same objectives of the Equality Act to prohibit unfair discrimination, in that not every instance of harmful and/or hurtful speech would result in imminent violence. There could be expression which certain groups found hurtful and/or harmful which did not actually result in violence, but that did not take away from the fact that such expression would have been hate speech.

12. Speech had to be interpreted broadly, so as to encompass the ideas behind the words themselves and both verbal and non-verbal expressions. The use of the terms advocate and propagate in section 10 (1) of the Equality Act was indicative of ideas rather than words, if they were to be accorded their full meaning. Attaching a literal interpretation to those words would not achieve the objects of the provision. The inclusion of those two concepts suggested that the intention was to give effect to article 4 of the ICERD and section 16(2)(c) of the Constitution respectively, which were specifically concerned with racist propaganda and the advocacy of hatred.

13. Words had meaning and effect should be given to them. To communicate assumed the conveyance of ideas. Words in and of themselves were otherwise meaningless. What the section targeted was thus the meaning behind the words, and not simply the words. An interpretation of the term words to include speech, ideas, ideologies, belief, meaning, instructions and so forth, afforded the term a sensible and reasonable interpretation that was constitutionally compliant. A purposive interpretation of that sort was undoubtedly required. In contradistinction to the other verbs in the impugned provision such as publish; propagate or advocate that all inherently required some form of public dissemination; communicate was capable of both being public and private. But, communicate in terms of section 10(1) plainly required that the speaker transmitted words to a third party; there had to be communication, the transmission of information.

14. Hate speech prohibitions, even those that attached civil liability, should not extend to private communications, because that would be incongruent with the very purpose of regulating hate speech; that public hateful expression undermined the target group’s dignity, social standing and assurance against exclusion, hostility, discrimination and violence. Furthermore, the purpose of hate speech prohibitions was to remedy the effects of such speech and the harm that it caused, whether to a target group or to the broader societal well-being. The speech had to expose the target group to hatred and be likely to perpetuate negative stereotyping and unfair discrimination. It was improbable that most private conversations would have that effect. Ultimately, hate speech prohibitions were concerned with the impact and effect of the hate speech and protecting the public good; that was inevitably limited when communicated in the private sphere. Therefore, true hate speech presupposed a public dissemination of some sort, or at the very least it could not be conveyed in mere private communications. The regulation of hate speech which occurred publicly set a normative benchmark and had the potential to shape future behaviour.

15. that hate speech could be directed at an individual but impact not just that individual, but the group to which that individual belonged. The offensive language used by the applicant might have been directed by an individual at one homosexual person; something like, “I do not understand your sexuality. Just how can you be sexually attracted to another man? One of these days you are going to want to marry an animal.” Although purportedly directed at one homosexual person, that would definitely cause untold harm, insult and injury to the LGBT+ community, not just the individual to whom the words were directed. Analogously, the same was bound to happen with the black community if a person used the vile word “kaffir” against one black person. There was nothing objectionable in the inclusion of the words against any person. That interpretation made sense in the context of the wide and not individualised dissemination that the section required. The words were a necessary component of section 10, if it was to cover what was required by section 16(2) of the Constitution.

16. It bore emphasis that the prohibition of hate speech sought to protect against the dissemination of hatred that caused or incited harm, in that it undermined the dignity and humanity of the target group and undermined the constitutional project of substantive equality and acceptance in the society. Provisions prohibiting hate speech could be contrasted with the law around unfair discrimination. In that context, listed grounds were grounds where the dignity assessment was presumed to have already been done; the jurisprudence told that discrimination on the basis of a listed ground was presumed to be unfair. That was based on past experiences, historic suffering or systemic disadvantage. As a result, in the unfair discrimination scenario, the onus shifted onto the respondent to show that discrimination on a listed ground was not unfair. Listed grounds differed from analogous grounds, where unfairness had to be shown.

17. One had to guard against a narrow definition of those terms. What the specified grounds in section 1 (xxii) of the Equality Act had in common was that they had been used (or misused) in the past (both in South Africa and elsewhere) to categorise, marginalise and often oppress persons who had had, or who had been associated with, those attributes or characteristics. Those grounds had the potential, to demean persons by denying them their inherent humanity and dignity. There was often a complex relationship between those grounds. In some cases, they related to immutable biological attributes or characteristics, in some to the associational life of humans, in some to the intellectual, expressive and religious dimensions of humanity and in some cases to a combination of one or more of those features. The temptation to force them into neatly self-contained categories should have been resisted.

18. The expansion of the listed grounds to include analogous grounds in section 1 (b) of the Equality Act, did not render the definition of prohibited grounds unconstitutional. The extended prohibited grounds were narrowly crafted to fulfil the purpose of the hate speech prohibition. The limitation was proportionate in an open and democratic society. The challenge based on a limitation of section 16 of the Constitution had to therefore fail.

19. The importance of the right to freedom of expression on the one hand and the importance of the purpose of the limitation of that right, namely to protect the equally important rights to equality and dignity by way of prohibiting hate speech, had been expounded. So too, the nature and extent of the limitation and the relation between the limitation and its purpose. However, it was there that the usefulness of the term hurtful became less clear. If speech that was merely hurtful was considered hate speech, that set the bar rather low. It was an extensive limitation. The prohibition of hurtful speech would certainly serve to protect the rights to dignity and equality of hate speech victims. However, hurtful speech did not necessarily seek to spread hatred against a person because of their membership of a particular group, and it was that which was being targeted by section 10 of the Equality Act. Therefore, the relationship between the limitation and its purpose was not proportionate.

20. All relevant factors had to be taken into account to measure what was reasonable and justifiable, and the factors listed in section 36(1)(a)-(e) of the Constitution were not exhaustive. What was required was for a court to engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list. In the circumstances, the term hurtful led to an unjustifiable limitation on freedom of speech, and was therefore unconstitutional.

21. The inclusion of sexual orientation as a prohibited ground in section 10(1) read with section 1 of the Equality Act stood on an entirely different footing. The limitation of the right to freedom of expression in the case of hate speech remained central to the protection of the rights to dignity and equality. However, the prohibition of hate speech based on sexual orientation was entirely proportional to its purpose. It would not be possible to protect the rights of the LGBT+ community without prohibiting hate speech based on sexual orientation. Less restrictive means of achieving that purpose had not been suggested, and were in fact inconceivable. All of the section 36 factors therefore pointed towards justifiability, and so the inclusion of the prohibited ground of sexual orientation in section 10(1) of the Equality Act, read with section 1, was a justified limitation of section 16(1) of the Constitution.

22. The doctrine of vagueness was founded on the rule of law, which, was a foundational value of the constitutional democracy. It required that laws had to be written in a clear and accessible manner. What was required was reasonable certainty and not perfect lucidity. The doctrine of vagueness did not require absolute certainty of laws. The law had to indicate with reasonable certainty to those who were bound by it what was required of them so that they could regulate their conduct accordingly.

23. Before constitutional compliance could be evaluated, a court had to attribute a meaning to a provision. If more than one meaning was reasonably plausible, the one resulting in constitutional compliance had to be chosen. But if the interpretation that emerged from the wording and context resulted in constitutional invalidity a court had to make a finding of unconstitutionality. The fact that a constitutionally compliant interpretation could not reasonably be given to it, did not necessarily lead to vagueness. A finding of vagueness based on a perceived inability to interpret the provision would in any event also result in constitutional invalidity. And an interpretation that rendered the provision meaningless would lead nowhere. It would be futile.

24. In particular, it was not clear whether there was any difference in the meaning of harmful and hurtful or whether one was a component of the other. If one accepted that hurtful only referred to emotional or psychological harm and harmful referred to physical harm, the immediate difficulty was that expression could not in and of itself be harmful in the physical sense. Put differently, words could not intrinsically cause physical harm. The 1st defendant’s proposed definition of those concepts did not appear to create any distinction between them. Substantively they appeared to mean the same thing. Intricate semantic contortions were required to reach separate meanings in them, and even then, the attainment of separate meanings seemed to be a bridge too far. That tortuous interpretative odyssey usurped the Legislature’s legislative functions and offended the principle of separation of powers.

25. The use of hurtful on a conjunctive reading appeared to be redundant and that contributed to the lack of clarity of the impugned section. That was because harmful could be understood as emotional and psychological harm that severely undermined the dignity of the targeted group as well as physical harm. Hurtful could reasonably mean the same as harmful, that was including both emotional and psychological harm. There was no need to have both. A possible solution would be for hurtful to mean something other than emotional harm, something less perhaps. However, due to the conjunctive reading, a claimant would have to show that in addition to being emotionally harmed, she was also hurt. It could be so that harmful communication was always hurtful. If it was, the removal of the word hurtful due to its vagueness avoided any redundancy that could lead to a lack of clarity.

26. Despite the best endeavours to fashion a constitutionally compliant and reasonably understandable meaning of the impugned section, there was no saving grace for its problematic parts. Given the troubling meaning of hurtful in the context of section 10(1), it was difficult for ordinary citizens to know whether their conduct would be hurtful or harmful and thus whether it met the threshold required by section 10. The term hurtful in section 10(1)(a) was vague and so breached the rule of law. For that reason, its inclusion in section 10(1) resulted in the section suffering from vagueness and it was thus unconstitutional.

27. Although severability in the context of constitutional law could often require special treatment, in the instant case the trite test could properly be applied: if the good was not dependent on the bad and could be separated from it, one gave effect to the good that remained after the separation if it still gave effect to the main objective of the statute. The test had two parts: first, was it possible to sever the invalid provisions and second, if so, was what remained giving effect to the purpose of the legislative scheme? Severing the word hurtful from the impugned provision would enable the objects of the Equality Act to be fulfilled.

28. Unfair discrimination against the LGBT+ community was not a new phenomenon. It had been prevalent since time immemorial. Ensuring the LGBT+ community had equal social standing and public assurance against exclusion, hostility, discrimination and violence was part of the greater transformative constitutional project. In the instant matter, homophobic speech was part and parcel of the broader system of homophobia and transphobia in South African society which included both hate speech and violent crimes perpetrated against members of the LGBT+ community. Homophobic speech was not only problematic because it injured the dignity of members of the LGBT+ community, but also because it contributed to an environment that served to delegitimise their very existence and their right to be treated as equals. Hate speech regulation in the country ought to have been grounded in the express anti-racist and anti-sexist tenets of the Constitution. In this respect, the jurisprudence was unique because of its strong pronouncements on the transformative nature of the Constitution and its aim of eradicating the remnants of the colonial and apartheid past.

29. Society at large had, generally, accorded far less respect to lesbians and their intimate relationships with one another than to heterosexuals and their relationships. The sting of past and continuing discrimination against both gays and lesbians was the clear message that it conveyed, namely, that they, whether viewed as individuals or in their same-sex relationships, did not have the inherent dignity and were not worthy of the human respect possessed by and accorded to heterosexuals and their relationships. That discrimination occurred at a deeply intimate level of human existence and relationality. It denied gays and lesbians that which was foundational to the Constitution and the concepts of equality and dignity, which were closely intertwined, namely that all persons had the same inherent worth and dignity as human beings, whatever their other differences could be. The denial of equal dignity and worth all too quickly and insidiously degenerated into a denial of humanity and led to inhuman treatment by the rest of society in many other ways. That was deeply demeaning and frequently had the cruel effect of undermining the confidence and sense of self-worth and self-respect of lesbians and gays.

30. The applicant enjoyed significant stature as a seasoned journalist, commentator of note and a veteran of the liberation struggle. He wrote to a predominantly Black township audience which took his views seriously. At that time it was “damn hard to be gay and stay in a township”. There was a clear intent on the part of the applicant to instigate hatred towards the LGBT+ community amongst his audience. The applicant’s article was written against the backdrop of the vile remarks of former President Mugabe, which were approvingly referred to, as well as extraordinarily high levels of violent attacks against members of the LGBT+ community.

31. The speech comprised unadulterated vilification and debasement of the LGBT+ community. Its reach and impact were undeniably extensive and devastating. Apart from the flood of complaints to both the defendant and the Press Ombud, there was the deeply touching testimony of the witnesses, in particular Ms MN and Professor Nel. In that regard, Ms MN during her testimony lamented that she prayed that courts came to their rescue and punish those who harassed and unfairly discriminated against members of the LGBT+ community. Her poignant complaint that the law did not care about people like her had been alluded to. Ms MN testified that the physical attacks on her were accompanied by hateful slurs, while onlookers merely stood around and said that she had to defend herself because she acted like a man. She testified that the unrelenting victimisation that she had experienced in her life made her feel that she had died inside, that she had “passed on”.

32. Professor Nel’s evidence graphically demonstrated the strong correlation between the prevalence and tolerance of hate speech in a society and the prevalence of hate crimes perpetrated against vulnerable groups. He highlighted the severe effects of hate speech on the dignity and self-esteem of vulnerable groups, particularly LGBT+ communities, culminating in increased incidences of depression and suicide. Professor Nel explained that hate speech resulted in its victims internalising the notions of inferiority engendered by hate speech, suffering from self-doubt and self-loathing and often experiencing suicidal ideation. It prevented them from becoming fully functioning members of society.

33. The likelihood of the infliction of harm and the propagation of hatred was beyond doubt. It was difficult to conceive of a more egregious assault on the dignity of LGBT+ persons. Their dignity as human beings, deserving of equal treatment, was catastrophically denigrated by a respected journalist in a widely read article. The harm to not only the already vulnerable targeted LGBT+ community, but also to the constitutional project, which sought to create an inclusive society based on the values of equality, dignity and acceptance, was indubitable.

34. There could be no question then that the applicant’s statements constituted hate speech. He was advocating hatred, as the article plainly constituted detestation and vilification of homosexuals on the grounds of sexual orientation. He was publicly advocating for law reform in favour of the removal of legal protection for same sex marriages. In doing so, he was undermining the protection of the law, the dignity of the LGBT+ community and the public assurance of their decent treatment in society as human beings of equal worth, deserving of human dignity and the protection and enjoyment of the full panoply of rights under the Constitution. In the context of hate speech prohibitions as civil remedies, a proven causal link between the hateful expression and actual harm as not required.

35. There was no impingement of the rule of law and the principle of legality and the typical concerns regarding retrospectivity were not triggered. That was simply because the recrafted provision did not take away or deprive the applicant of any existing rights that he had. Before the amendment of section 10, the elements of hate speech that were clear and constitutional were those in section 10(1)(b) and (c), and it was those provisions that the applicant fell foul of. Therefore, he could not have claimed that he was prejudiced by not knowing the law beforehand and that the hate speech prohibition did not exist at the time the article was published.

36. It would not be just and equitable to allow a person to escape liability in those circumstances. To do so would be to deny an effective remedy to vindicate the rights of the LGBT+ community. Other concerns were attenuated, since the Supreme Court of Appeal did not interfere with the evidence and factual findings of the High Court, except in one respect, the causal link between the article and physical or verbal attacks. A causal link was not a requirement for hate speech. In the premises, there were no cogent reasons for the court not to accept the factual findings of the Equality Court. Based on both the old provision and the recrafted one, therefore, the article indubitably constituted hate speech.

37. There was a reasonable apprehension that the applicant’s article fuelled the already burning anti-LGBT+ fire (alluded to by the witnesses) and galvanised further discrimination, hostility and violence against the LGBT+ community. That was particularly pertinent when, as contended by the Psychological Society, (an amicus curiae) one considered the context when the article was published in 2008, which in turn fortified a reasonable apprehension of harm. The amicus curiae pointed out that that period was characterised by an extraordinarily high level of violence against the LGBT+ community in South Africa.

38. The test whether the article amounted to hate speech was objective. And the declaratory order would not only ameliorate the severe harm caused to the LGBT+ community, but would also convey a strong message of deterrence in respect of hate speech directed against members of that community. That harm was ongoing. The impugned article continued to contribute to an environment of intolerance that could further normalise discrimination and violence against members of the LGBT+ community. Without unequivocal disapprobation from that court, the contents of the article would continue to haunt those who were and are the targets of its hatred.

39. The costs order ought to reflect that the applicant was partially successful in his constitutional challenge of the impugned provision in the court. But it bore consideration that that partial success emanated from the applicant’s egregious violation of the rights of others that resulted in the Equality Court complaint, ultimately leading to him going to court to vindicate his own rights. The applicant was consequently entitled to half of his costs. The State, represented by the 2nd defendant, was to pay those costs.

Application partly allowed.

Orders:

i. In respect of the confirmation application:

(a) The declaration of constitutional invalidity of section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) made by the Supreme Court of Appeal was confirmed in the terms set out in paragraph (b). (b) It was declared that section 10(1) of the Equality Act was inconsistent with section 1(c) of the Constitution and section 16 of the Constitution and thus unconstitutional and invalid to the extent that it included the word hurtful in the prohibition against hate speech. (c) The declaration of constitutional invalidity referred to in paragraph (b) took effect from the date of the order, but its operation was suspended for 24 months to afford Parliament an opportunity to remedy the constitutional defect giving rise to constitutional invalidity. (d) During the period of suspension of the order of constitutional invalidity, section 10 of the Equality Act would read as follows:

(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred. (2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.

(e) The interim reading-in would fall away when the correction of the specified constitutional defect by Parliament came into operation. (f) Should Parliament fail to cure the defect within the period of suspension, the interim reading-in in paragraph (d) would become final.

ii. In respect of the appeal against the hate speech complaint:

(a) Leave to appeal was granted. (b) The appeal by the 1st defendant was upheld. (c) The order of the Supreme Court of Appeal was set aside. (d) The offending statements (made against the LGBT+ community) were declared to be harmful, and to incite harm and propagate hatred; and amount to hate speech as envisaged in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000.

iii. In respect of the constitutionality challenge, the 2nd defendant was ordered to pay half of the applicant’s costs in the High Court, the Supreme Court of Appeal and the Constitutional Court. iv. The applicant was ordered to pay the costs of the 1st defendant in the High Court, the Supreme Court of Appeal and in the Constitutional Court.

Relevance to Kenya’s legal system

The Constitution of Kenya, 2010 (Constitution) prohibits discrimination in its article 27. Sub-article (4) prohibits discrimination based on race, sex, pregnancy, mental status, health status, ethnic or social origin, colour, age among others. Despite this, the Penal Code, Cap 63 criminalizes same sex relations such as of homosexuals, lesbians and gays; section 162 (a) (c) of the Penal Code on unnatural offences and section 165 of the Penal Code on indecent practices between males.

In EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae), the court held that section 162 (a) (c) of the Penal Code on unnatural offences and section 165 of the Penal Code on indecent practices between males was constitutionally compliant and in conformity with the principles of legality. The court further held that:

“Inasmuch as the Court of Appeal in the Non-Governmental Organizations Coordination Board v EG & 5 others (2019) eKLR agreed with the High Court that sexual orientation could be read into article 27(4) of the Constitution as one of the prohibited grounds for discrimination, the Court was emphatic that the reading in would depend on the circumstances of each case. The circumstances of the instant case did not permit the reading in because to do so would defeat the purpose and spirit of article 45(2) of the Constitution.

The desire of Kenyans, whether majoritarian or otherwise were reflected in the Constitution. The views of Kenyans could not be ignored given the clear and unambiguous provisions in article 45 (2). While courts could not be dictated to by public opinion, they would still be loath to fly in the face of such opinion. Where the will of the people was expressed in the Constitution, it represented societal values, which had to always be a factor in considering constitutional validity of a particular enactment where such legislation sought to regulate conduct, private or public. In Kenya, those views were clearly expressed in article 45(2).”

Article 24 (1) of the Constitution provides:

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only 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 or fundamental freedom;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

(e) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose?

Article 33 of the Constitution provides:

(1) Every person has the right to freedom of expression, which includes

(a) freedom to seek, receive or impart information or ideas;

(b) freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

(a) propaganda for war;

(b) incitement to violence;

(c) hate speech; or

(d) advocacy of hatred that—

(i) constitutes ethnic incitement, vilification of others or incitement to cause harm; or

(ii) is based on any ground of discrimination specified or contemplated in Article 27(4).

Article 19 of the International Covenant on Civil and Political Rights, 1966 entrenches the right to freedom of expression, but restricts that right when necessary. Article 20 limits expression if it is hate speech, by providing that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is prohibited by law. The ICCPR calls upon state parties to adopt legislation to enforce those provisions.

In addition, the International Convention on the Elimination of All Forms of Racial Discrimination, 1965 prohibits all forms of racial discrimination. From a regional perspective, the African Charter on Human and Peoples’ Rights, 1981 (Banjul Charter) also entrenches the right to freedom of expression, coupled with obligations to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.

In the case of Geoffrey Andare v Attorney General & 2 others [2016] eKLR, the court declared section 29 of unconstitutional. The court further held:

“Section 29 did not define what amounted to a message that was ‘grossly offensive’, ‘indecent’ obscene’ or ‘menacing character’ and did not answer the question as to which message could course ‘annoyance’, ‘inconvenience’, ‘needless ‘anxiety’. In the absence of definition of the aforementioned words the meaning of those words was left to the subjective interpretation of the Court, which meant that the words were so wide and vague that their meaning would depend on the subjective interpretation of each judicial officer seized of a matter.

The provisions of section 29 were so vague, broad and uncertain that individuals did not know the parameters within which their communication fell and the provisions therefore offended against the rule requiring certainty in legislation that created criminal offences. A norm could not be regarded as law unless it was formulated with sufficient precision to enable the citizen to regulate his conduct: he should be able- if need be with appropriate advice- to foresee, to a degree that was reasonable in the circumstances, the consequences which a given situation could entail. Laws could not grant officials largely unfettered discretion to use their power as they do not wish, nor could laws be so vaguely worded as to lead reasonable people to differ fundamentally over their extension. The provisions of section 29 were therefore so wide and vague that they offended the requirements with regard to law that carried penal consequences.

Protection of the right to freedom of expression was of great significance to democracy. It was the bedrock of democratic governance. The importance of freedom of expression could not be over-emphasised. Freedom of expression enables the public to receive information and ideas, which were essential for them to participate in their governance and protect the values of democratic government, on the basis of informed decisions. It promoted a market place of ideas. It also enabled those in authority to be brought to public scrutiny and thereby hold them accountable. Once it was recognized that section 29 of the Act limited a right that was as important as the right to freedom of expression undoubtedly was, and then the state should bring the law imposing such limitation within the rubric of article 24 of the Constitution.

Article 24(2) of the Constitution required that; a provision in legislation limiting a right or fundamental freedom in the case of a provision enacted or amended on or after the effective date, was not valid unless the legislation specifically expressed the intention to limit that right or fundamental freedom, and the nature and extent of the limitation should not be construed as limiting the right or fundamental freedom unless the provision was clear and specific about the right or freedom to be limited and the nature and extent of the limitation.

Article 24(3) imposed a duty on the State, in circumstances such as in the instant case. The said article requires that, the State or a person seeking to justify a particular limitation should demonstrate to the Court, tribunal or other authority that the requirements of article 24 had been satisfied. Limitation of fundamental rights and freedom should be on grounds which were permitted in the Constitution, which under article 33(2) of the Constitution were those for propaganda for war, incitement to violence, hate speech, or advocacy of hatred.”

InRobert Alai v The Hon Attorney General & another [2017] eKLR, the court declared section 132 of Penal Code unconstitutional. The court further held that

“Section 132 of Penal Code did not define the words “undermining authority of a public officer” leaving it to the subjective view of the person said to have been undermined and/or the Court. In a democratic state, constructive criticism of public or state officers was the hallmark of democracy and the means for public accountability. Criminalizing criticism was not in accordance with a transformative Constitution, since senior public officers should routinely be open to criticism. Dissent in opinion should not amount to a crime otherwise this was in effect, suppressing the right to hold different opinion from those in public office.

In a free and democratic society, it was almost too obvious that those who hold office in government and who are responsible to public administration, must always be open to criticism. An attempt to stifle or fetter such criticism amounted to political censorship of the most insidious and objectionable kind. At the same time, it was no less obvious that the very purpose of criticism levelled to those who have the conduct of public affairs by their political opponents was to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.

Any limitation to a fundamental right must be reasonable and justifiable. The limitation to freedom of expression by section 132 must be justified. This being a democratic society, limitation of a right must not only be reasonable but also justified by the party seeking to limit that right. Such limitation must strike a balance between the provision limiting the right and article 24 of the Constitution.”

It is therefore clear from the South African case and from the Kenyan legal system that limitation of a constitutional right has to be clear and precise and justifiable in a democratic society and any legislation or provision that deems otherwise is usually declared unconstitutional.

However, it is clear that Kenya still decriminalizes LGBT + community by virtue of protecting its culture of families and marriages made up of people of the opposite sex under article 45 (2) of the Constitution. South Africa on the other hand has taken a liberal view and accepted the community, protecting them under the right to non-discrimination. All in all, the South African case is jurisprudential to Kenya, in that it widens the areas of non-discrimination even from other jurisdictions and limitation of constitutional provisions justifiably in an open and democratic society.

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