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Discriminatory Language: A Remnant of Colonial Oppression

2021; Taylor & Francis; Volume: 11; Issue: 1 Linguagem: Inglês

10.2989/ccr.2021.0012

2521-5183

Tanveer Rashid Jeewa, Jatheen Bhima,

African history and culture analysis

Open AccessDiscriminatory Language: A Remnant of Colonial Oppression Tanveer Rashid Jeewa Jatheen Bhima Tanveer Rashid Jeewa1 0000-0002-0540-7833 Jatheen Bhima2 Affiliations 1International Commission of Jurists 2Pan African Bar Association of South Africa Published Online:21 Dec 2021https://doi.org/10.2989/CCR.2021.0012https://hdl.handle.net/10520/ejc-jlc_conrev1_v11_n1_a12SectionsPDFAbstract ToolsAdd to favouritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InRedditGMailOutlookYammermore AboutAbstractSpeech carries tremendous power. It shapes our realities, influences our consciousness and, often, the chance for any real change requires changing the way we speak. In South Africa's post-apartheid constitutional state, remnants of colonial oppression surround us, not only in tangible aspects, but also through speech. This paper argues that the way hate speech has been developed through jurisprudence has rendered the concept of hate speech sterile within a South African context. Specifically, this paper uses the tenets of critical race theory and its accompanying endorsement of an intersectional approach to critique the reasonable man test as contained in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ('Equality Act') and as formulated by the courts through its jurisprudence. The argument proposed is that the courts' formulation of the legal test for hate speech under section 10 of the Equality Act does not and will not protect previously (and currently) disadvantaged groups because the present test fails to take cognisance of the fact that 'objectivity' is a tainted principle where apartheid and colonialism has shaped laws and its adjudicators. This paper explores aspects of race and law and the way in which 'colour-blindness', non-racialism and the apparent neutrality of the law constitute a veil behind which implicit biases are left unchecked to the detriment of Black people. Importantly, this paper engages with the harms that arise from applying laws that are, and so we argue, 'conceived through the white eye', and we attempt to demonstrate the resulting fallacious nature of the 'reasonable man' test. Ultimately, this paper seeks to question: Who is the reasonable person? Is the reasonable person a member of the group of persons targeted by the speech? Or is the reasonable person akin to the utterer of speech? Or, yet again, is the reasonable person a neutral third party who is assumed to be aware of the South African context but belongs to no racial group?I INTRODUCTIONWe construct the social world, in large part, through speech. How we speak to and of others determines whether and on what terms we accept them into our world as groups and as individuals.1Speech carries tremendous power. It shapes our realities, influences our consciousness and, often, the chance for any real change requires changing the way we speak. In South Africa's post-apartheid constitutional state, remnants of colonial oppression surround us, not only in tangible aspects, but also through speech. Not yet belonging in our past, apartheid persists through oppressive spatial planning and economic disenfranchisement based on race, gender, and sexual orientation; and, like a roach, persistent in its will to persevere, oppressive and discriminatory language is aimed at perpetuating the derision of dignity of many individuals and groups. Despite our country's hate speech laws, it is not uncommon to find news stories about racist, sexist, homophobic or ableist language unashamedly spewed at previously (and currently) disadvantaged groups.For example, the Constitutional Court prompted a reframing and possible renewal of the law through its judgment in Qwelane v South African Human Rights Commission and Another.2 The Court declared s 10(1) of the Equality Act unconstitutional and invalid to the extent that it was inconsistent with sections 1(c) and 16 of the Constitution; and highlighted the importance of hate speech laws in protecting marginalised persons and groups.While we applaud the Court for vehemently condemning homophobia, we argue that the Court's formulation of the legal test for hate speech under s 10 of the Equality Act3 did not and will not adequately protect previously (and currently) disadvantaged groups. In this article, we argue for the use of a critical race theory (CRT) perspective which we contend is consistent with the South African constitutional framework. We apply this perspective to the requirement that the notion of hate speech must be determined with reference to a 'reasonable person' test.4 Through engaging with the history and vagueness of the test, we highlight its propensity to hide judicial bias. Doing so, in our view, leads to two conclusions. First, we argue for the need to continue advancing the racial transformation of the judiciary. Secondly, we highlight the importance of awareness of bias by judges and the role of legal academics in exposing instances of inherent bias.II THE RELATIONSHIP BETWEEN RACE AND THE LAWThe choice of CRT as a theoretical framework is mostly justified by its precept of questioning the status quo in an effort to gauge the tangible impact of said status quo on Black people. A malleable and evolving paradigm, CRT challenges existing theories of society with the acknowledgment that without a consideration of race and racism, there can be no adequate account of power relations and consequently, existing norms and theories will be biased in the favour of white supremacy.The theory started as a scholarly movement in the United States in the early 1970s, burgeoning from the works of well-known Black civil rights lawyer, Derrick Bell.5 Back then, Bell had claimed that regardless of the abolition of slavery, and promulgation of civil rights statutes to prohibit racial discrimination, 'the fact of slavery refuses to fade'.6 Grounded in this 'refusal to fade', scholarly writings under CRT effectively point out that what is seen as 'racial progress' is usually only a 'regeneration of the problem in a particularly perverse form'.7 Critical race theory thus arose at a time where 'new theories were needed to cope with emerging forms of institutional or "colorblind" racism and a public that seemed tired of hearing about race.'8 Critical race theory's constant challenge to the dominant liberal thought is to provide a platform where scholars are free, not only to judge civil reforms on paper, but rather to assess their tangible impact in practice.This assessment has led critical race theorists to conclude that, during changing times, racism was evolving too. The theory repositioned racism and characterised it as 'ubiquitous, ordinary, making it hard to see'.9 In contrast to the blatant racism imposed by demeaning laws under apartheid or slavery, the racism that post-racial society is facing is covert and does not necessarily amount to racial vilification:10In ways so embedded that it is rarely apparent, the set of assumptions, privileges, and benefits that accompany the status of being white have become a valuable asset – one that whites sought to protect and those who passed sought to attain, by fraud if necessary. Whites have come to expect and rely on these benefits, and over time these expectations have been affirmed, legitimated, and protected by the law. Even though the law is neither uniform nor explicit in all instances, in protecting settled expectations based on white privilege, [American] law has recognised a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated.11The new 'neutral' and 'colour-blind' laws have led to the depoliticisation of race, and the assumption that race is no longer necessary as we are all treated equally before the law. Yet, laws that do not consider our different lived experiences and struggles, cannot lead to substantive equality. The argument is usually that laws, whether posturing as neutral or not, reflect the views of policy-makers and the white majority. In the South African context, there is a Black majority government and a Black majority population. However, despite white people constituting a minority, they own a majority of the means of production, wealth, knowledge and power.12 This very distribution of power to the minority population was the objective of apartheid laws. As Modiri argues on CRT in a post-apartheid South Africa: Law, it is said, is conceived through the white eye; it represents the white perspective. It starts from the white experience and fails to recognise the view and experiences of the disadvantaged and black persons.13Given the history of South Africa, an example of the law being 'conceived through the white eye' is the absence of a defence against witchcraft as justifiable under South African criminal law. Despite the efforts of white settlers and the apartheid government, the majority of South Africans still believe, and continue to believe, in witchcraft, For example, 'busakatsi', which refers to witchcraft in an African context, includes the use of harmful medicine; harmful magic; and other means or devices that may cause illness, misfortune or death to a person, or damage to property.14 This belief prevails in both educated and uneducated communities regardless of geographic location.15 Yet, in many instances, courts have ignored accused persons' belief in witchcraft, and in so doing have denied the traditional culture of the parties.16An example of this disregard of traditional culture is found in S v Mokonto, where the Appellate Division disregarded the issue of the accused's belief in witchcraft as having no relevance to the question of whether the accused had had the intention to kill the deceased.17 In addition to this, regardless of the fact that everyone has the right to freedom of conscience, religion, thought, belief and opinion under section 15 of the Constitution, as well as everyone being free to enjoy their culture and practice their religion under section 31, the use of witchcraft remained prohibited under the Witchcraft Suppression Act 3 of 1957. A CRT approach seeks to question the disregard of traditional culture and we argue that such disregard of traditional culture in favour of western norms is but a single example of how the law is 'conceived through white eyes'.This was particular evident in Rex v Mbombela,18 a case decided by the then South African Appellate Division in 1933, where the accused had killed his younger cousin under the erroneous belief that the latter was a 'tikoloshe'.19 The Judge rejected the accused's defence, stating that: by the law of this country there is only one standard of 'reasonable man'… the man of ordinary knowledge and intelligence… [T]he race, or the idiosyncrasies, or the superstitions, or the intelligence of the person do not enter into the question.20While many could argue that a reasonable Xhosa man would have believed that the victim was a tikoloshe, the Court refused to take into consideration the context of the accused, implying that: this 'reasonable man' – an ideal figure, bleached of the cultural and religious traits of the accused and (although not conceded by the Court to be so) reanimated with those of the colonial official – would not have shared the belief in the tikoloshe underpinning [the accused's] mistake.21These examples suggest that despite the constitutional change, the law retains a bias against the cultures and beliefs of Black people – with the law being used as a 'colorblind' tool which we argue can lead to the demise of Black communities and individuals. This challenges the liberal view that the law is innocent, neutral and that any connection between racism and law is exceptional and curable.22 What appear to be 'colour-blind' laws entrench a bias against Black people and further preserve the status quo through their application.Beyond just the law itself, critical race theorists argue that the application of the law too often entrenches bias and furthers white interests under the guise of race neutrality. While many legal scholars accept the notion of judicial bias, CRT takes it further and explains that this judicial bias is often in favour of whiteness. Judicial bias manifests itself through explicit and implicit biases. Explicit biases are stereotypes and attitudes known to the judge, and openly sanctioned as suitable because there are no social norms against these explicit biases.23 If social norms against explicit biases do exist, the judge may conceal the explicit bias. Implicit biases, on the other hand, are stereotypes and attitudes that are held subconsciously and do not depend on the judge's conscious awareness of the reasons they give for decisions but are reflected in those decisions.24To prove the existence of implicit bias, Harvard University developed an 'Implicit Association Test' (IAT) which assesses the strength of associations between concepts, evaluations or stereotypes.25 While the IAT is a test that was developed and applied in the United States, we rely on its observation that white judges demonstrate strong implicit bias favouring white people over Black people to show that judges hold racial bias too, even unknowingly. Empirical evidence based on the IAT in the United States shows that white judges demonstrated strong bias favouring white people over Black people.26 Thus, compared to the view that law is distinct and autonomous from social life, judges' decisions are not based on an organic and pre-political interpretation of the law.27 Instead, judges reveal their biases in their interpretations and applications of law to facts. In fact, many critical race theorists consider these implicit biases not to be remediable. If so, such biases will be widespread in a country like South Africa with a history of racial discrimination and inequality. Such biases have the opportunity to reveal themselves in many ways and often in the interpretation of broad terms where judicial discretion must be exercised such as 'reasonable', 'sensible', 'common sense' and 'fit and proper'.28 This article considers the notion of 'reasonableness' and will seek to highlight the dangers it poses for judicial bias in the context of deciding what constitutes hate speech or not.A Critical race theory and hate speechIn recognising explicit and implicit biases in judges, one cannot escape the impact that these biases have on interpreting the law. As a result, when a legal test or threshold incorporates an objective standard of reasonableness, it can work to obscure the effect of perspective. The work of Richard Delgado is a useful starting point in our interrogation of how perspective can serve to perpetuate or redress racial harm.Delgado believes that the 'old, formalist view of speech as a near-perfect instrument for testing ideas and promoting social progress is passing into history' and in its place is 'a much more nuanced, skeptical (sic); and realistic view of what speech can do, one that looks to self- and class interest, linguistic science, politics, and other tools of the realist approach to understand how expression functions in our political system.'29 The outcome, he argues, is more humane.Delgado proposes that the CRT approach to hateful and racist language is as follows – firstly, that the marketplace of ideas is sterile when dealing with 'systemic social ills like racism and sexism' because these systemic ills are 'embedded in the reigning paradigm, the set of meanings and conventions by which we construct and interpret reality' and any person speaking out against the ruling paradigm is labelled as politically extreme or incorrect.30 Secondly, freedom of expression is used to sanitise the status quo. Specifically, Delgado argues that 'communication is expensive, so the poor are often excluded; the dominant paradigm renders certain ideas unsayable or incomprehensible; and our system of ideas and images constructs certain people so that they have little credibility in the eyes of listeners.' Thirdly, and lastly, that hate speech may be more of an inequality problem and less of a freedom of expression problem, as hate speech entrenches the status quo and solidifies the unequal distribution of social power. In explaining the perceived tension between speech and equality, Delgado stated '[s]peech, at least in the grand dialogic sense, presupposes rough equality among the speakers'31He poses an important question: 'We are questioning whether the continuum of high-value (viz., normal) and low-value speech may not be all there is. Could there be no-value speech, or negative-value speech, which not only could, but should be restricted?' We argue that, at least in South Africa, there is such a category of speech, and it should be restricted.B Hate speech in South AfricaSouth Africa's position in relation to hate speech is a rejection of the notion that the right to freedom of expression is supreme above all other rights.32 This approach is in line with the Constitution's vision for South African democracy. It is clear from the various duties in section 7(2) of the Constitution33 that the duties of the state are not only limited to protecting the constituent rights but, additionally, the state is obliged to promote rights that foster social welfare. Accordingly, the Constitutional Court, in Islamic Unity,34 recognised two categories of harm which are engendered by hate speech, the harm that it causes to the recipient of the speech and the harm caused to society as a whole.35 Significantly, the judgments from the Court regarding hate speech stress that through the regulation of hate speech, an important balance between the rights to equality, dignity and free speech needs to be achieved.The most recent judgment of the Court on hate speech, the Qwelane case, highlighted this balance between the rights to equality, dignity and free speech. The facts in Qwelane are as follows. The applicant, the late Mr Qwelane, was the author of an article entitled: 'Call me anything but gay is not okay' published in the Sunday Sun newspaper in 2008. The article was understandingly deeply offensive to members of the LGBTQIA+ community and eventually led to proceedings in the Equality Court and the High Court. When the case reached the Constitutional Court, the Court found that s 10(1)(a) of the Equality Act – which allowed 'hurtfulness' to be sufficient for speech to constitute hate speech – to be unconstitutional due to its vagueness and unjustifiable limitation of section 16 of the Constitution.The Court read s 10(1) of the Equality Act to prohibit speech that 'could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred'.36 The Court in Qwelane found that the words 'reasonably be construed' and 'to demonstrate a clear intention' imply an objective test which takes into consideration circumstances and facts around the utterance and 'not mere inferences or assumptions that are made by the targeted group' (emphasis added). Adding that the Supreme Court of Appeal erred in its conclusion that the test was subjective, the Constitutional Court highlighted that an objective approach which considers the context in which the words are spoken, is more in line with the spirit, purport, and objects of the Bill of Rights.37 The Court also endorsed the criteria of reasonableness as applied in Le Roux, a case that dealt with the context of defamation: [t]he test to be applied is an objective one. In accordance with this objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying this test it is accepted that the reasonable reader would understand the statement in its context and that [they] would have had regard not only to what is expressly stated but also to what is implied.38Relying on Rustenburg Platinum Mine,39 the Court in Qwelane held that words themselves do not bear an inherently racist meaning and indicated the importance of the context in which the words are published, propagated, advocated or communicated.40Taking into consideration all the above, the Court concluded that the hate speech test is objective and the requirement of reasonableness in and of itself was left intact. This is even though the judgment embraced the principle of intersectionality, one of the key products of CRT.41 Instead of questioning what an objective test means in relation to hate speech, the focus was on the objectivity of the requirement of reasonableness. As illustrated in the previous sections, a CRT approach to hate speech would have required an in-depth analysis into this allegedly 'neutral' requirement of reasonableness. However, before this paper delves into this analysis, it is important to consider whether CRT is compatible with the South African Constitution.C Critical race theory in South AfricaIt is not commonly accepted that the South African legal landscape allows for the application of CRT. This is mostly because of the value of 'non-racialism' adopted by the South African Constitution.42 It is commonly understood that non-racialism is a vision embraced by the drafters of the Constitution in an effort to work towards a society which will not be driven by racial identification. Yet, the problem arises as to what the value of non-racialism means pro tem. In the absence of a society in which race would not matter, what does non-racialism mean? Does one ignore race in an effort to achieve such a society? Is such a society even fathomable if one does not address existing racial discrimination?To answer these questions, it is essential to briefly consider the history of non-racialism. The concept seems to have emerged some time before the adoption of the Freedom Charter in the 1950s.43 Chief Albert Luthuli adopted the phrase to convey his 'universal' vision for South African society, one which would reject race as a means of categorisation and differentiation.44 Such a meaning appears to be in line with what Glasgow described as 'racial eliminativism'.45 This translates into the removal of racial categorisation from state policies and institutions, from public life and social discourse, and finally, from private attitudes and thoughts. The endpoint would be that racial categorisation would no longer be of import in our lives, and we would all be equal regardless of race.While the achievement of such a society is laudable, it is not one that can be achieved while there is still rampant systemic inequality and socio-economic inequity.46 As it stands, an interpretation of non-racialism which rejects any acknowledgment of race or redress measures may in fact entrench existing racial inequalities.47 Acknowledging race allows us to see that Black people and other people of colour still endure the consequences of apartheid, despite its formal abolition. It is with this knowledge in mind that the legislature put into place affirmative action as per the Employment Equity Act 55 of 1998. It is clear from the Employment Equity Act's preamble that these laws aim to provide Black people with redress in the form of equality of opportunities to correct for past injustices.48If the value of non-racialism, as per the Constitution, is understood as the complete rejection of racial categorisation, then policies such as affirmative action would be deemed unconstitutional. This view, in its denial of the ramifications of existing, long-lasting, and pervasive racism has been termed by Conradie as a 'power-evasive' ideology, an ideology that refuses to acknowledge existing power dynamics in society. Simply put, this 'power-evasive' ideology seeks to mask the historical power amassed by the minorities that have historically wielded such power.49 Much like our earlier discussion about the allegedly neutral laws, such power-evasive ideologies allow holders of these ideologies 'to avoid obtaining knowledge about the way race plays out in society'.50 Many people who believe in these power-evasive ideologies do so because they find it hard to understand the appeal of investigating 'so-called new guises of racial (dis)advantage' now that blatantly racist legislation has officially been repealed by a non-racial constitution.51 Thus, racism is only seen and acknowledged in the form of violent racist incidents, which is then blamed on particular individuals:52Social ills are crafted as problems located within specific individual relationships and the possibilities for social action are thus undermined. The hegemonic liberal humanist discourse insisting that we focus on our 'common humanity' erases the specificities of race experiences and evades the question of who has the power to define that humanity.53This understanding of non-racialism, in its refusal to acknowledge the existing harms of racism in a post-apartheid society, is not, in our view, in line with and does not give effect to the spirit, purport and objects of the Bill of Rights. This is because, on a textual reading of the Constitution, it is clear that it envisages race as a ground on which unfair discrimination may take place. Section 9(3) prohibits discrimination based on race, thereby anticipating from its inception that race not only still exists but also has an impact.In Rustenburg Platinum Mine, a case in which a white man used the term 'swartman' ('Black man') to refer to a Black person, the Court remarked that, The past may have institutionalised and legitimised racism but our Constitution constitutes a 'radical and decisive break from that part of the past which is unacceptable'. Our Constitution rightly acknowledges that our past is one of deep societal divisions characterised by'strife, conflict, untold suffering and injustice'. Racism and racial prejudices have not disappeared overnight, and they stem, as demonstrated in our history, from a misconceived view that some are superior to others.54It becomes clear that a view that society as it currently exists should be sanitised of context, is misconceived. The Constitution's commitment to break away from the past, as is seen from Rustenburg Platinum Mine, to achieve a society which is non-racial, requires the judiciary to deal with racial discrimination head-on by acknowledging not only its origins, but also its continued existence. An approach that acknowledges the influence of race on different aspects of the lives of people in South Africa is in line with CRT and would require a deeper engagement of the continuing legacy of racism on our law and judicial decision-making.Additionally, the Constitution mandates affirmative action. Section 9(2) of the Constitution states that 'To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.'On this premise, the Constitution once again not only recognises that race will have an impact on people's lives, it will also allow the state to adopt measures and legislation actively to assist with people's advancement on the grounds of their race. These are precisely the kinds of policies that people with power-evasive ideologies believe should not be permissible. Since we already pointed out that not allowing these policies would, in and of itself, serve to perpetuate racial inequality, we now point out that it would also be unconstitutional. This is because, as Ngcobo J writes in Doctors for Life, '[p]rovisions in the Constitution should not be construed in a manner that results in them being in conflict with each other. Rather, they should be construed in a manner that harmonises them.'55 Additionally, 'while it is true that foundational values play a role in the interpretation of the Bill of Rights, their role is limited to illuminating the language of a particular provision of the Bill.'56 We consequently argue that an interpretation of the value of 'non-racialism' which aligns with a power-evasive ideology is one that would be in conflict with section 9(2) of the Constitution and thus ought to be abandoned.Lastly, the Equality Act aims to protect previously marginalised communities, including Black people. The prohibited grounds included in s 10(1) of Equality Act are directly extracted from section 9(3) of the Constitution, under the equality clause.57 The Equality Act was enacted to give effect to the equality clause, as shown by its long title.58 The preamble of the Equality Act would suggest that its content was enacted with the aim of being a means of redress for inequalities suffered in the past and those that are still being suffered: The consolidation of democracy in our country requires the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people; […]Although significant progress has been made in restructuring and transforming our society and its institutions, systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy [emphasis added]The Equality Act's point of departure is aimed at protecting groups which have been and are currently unfairly discriminated against, which includes Black people within the South African context. This acknowledgement of the impact that race has in the daily lives of people in South Africa, once again shows that CRT is consistent with the approach adopted in the South African legal landscape.Having carved out the place of CRT within a South African context, we now demonstrate that the Court has already adopted tenets of CRT in previous judgments, albeit not always e