Charges against the accused of contravening section 11(1)(a),(b) and (c) of the Racial Discrimination Prohibition Act No. 26 of 1991 (hereafter the Act) were quashed on the grounds that they were in conflict with Article 21(1)(a) and (b) of the Namibian Constitution, which provides for the right to freedom of speech and expression, and the right to freedom of thought, conscience and belief. The Namibian Parliament was granted six months to amend section 11(1), failing which the section would be declared invalid.
Facts The accused were charged with contravening section 11(1) of the Act. The section provides in the relevant parts that,
"(1) No person shall publicly use any language or publish or distribute any written matter or display any article or do any act or thing with intent to -
(a) threaten, ridicule or insult any person or group of persons on the ground that such person(s) belong to a particular racial group; or
(b) cause, encourage or incite disharmony or feelings of hostility, hatred or ill-will between different racial groups or persons belonging to different racial groups;
(c) disseminate ideas based on racial superiority.
"Racial Group" is defined in the Act as "a group of persons defined by reference to colour, race, nationality or ethnic or national origin."
The accused sought to quash the charges on the basis that the relevant section contravened section 21(1)(a) and (b) of the Namibian Constitution which reads:
"(1) All persons shall have the right to:
(a) freedom of speech and expression, which shall include freedom of the press and other media;
(b) freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning.
Section 21(2) provides that the above freedoms be exercised subject to the law of Namibia, provided that any restrictions imposed be reasonable and necessary in a democratic society and further, are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Decision
It was accepted by all parties that Parliament was entitled to legislate in this area. Thus, the question facing the Court was whether section 11 is a permissable derogation of Article 21(1) and whether that section is excessively broad in operation.
Following the approach set out in Kauesa v Minister of Home Affairs and Others 1995 (1) SA 51 (NmHC), the Court found that it was clear that as section 21(2) creates exceptions to the right to freedom of expression, such exceptions must be strictly interpreted "...so that individuals are not unnecessarily deprived of the enjoyment of their rights".
As to when a restriction would be reasonable as contemplated by Article 21(2), the principles of proportionality enunciated by the Canadian Court in R v Oakes (1986) 26 DLR (4th) are instructive. The Oakes test is comprised of three components: First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be "rationally connected" to the objective. Second, the means, even if rationally connected to the objective in the first sense, should impair "as little as possible" the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the right or freedom, and the objective which has been identified as being of "sufficient importance". In this regard, it must be accepted "that it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve."
Frank J held that the prevention of a recurrence of the type of racism and its concomitant practices which prevailed prior to Namibia's independence is a "sufficiently significant objective" to warrant a limitation on the rights enshrined in Article 21(1). However, in his view, the definition of "racial group" in the Act goes far beyond what is required and was clearly not "carefully designed to obtain the objective in question."
"It does not justify restrictions with regard to groups of persons who never featured in the pre-independence of Namibia and were never part of or a party to the social fissure amongst the different peoples making up the population that was occasioned by the erstwhile racist policies."
Frank J held that because the definition goes too far, it does not impair freedom of expression "as little as possible" in attempting to achieve the valid objective of preventing racism in Namibia. Further, Frank J held that the definition, and consequently the restriction, is disproportionate as it may operate to stifle debate on issues of public importance, which have nothing to do with race relations in the country, for example affirmative action and historical assessments.
Frank J commented that while he accepts that truth need not in all circumstances be available as a defence, especially where the truth is stated or communicated "with an intention to provoke hatred", the circumstances under which truth will not be a defence must clearly be very limited. (See R v Keegstra (1990) 61 CCC (3d)) In the present case, the Court held that if the truth is used for "no other purpose than to" bring about the results contemplated in section 11 of the Act, then there may be a case for suggesting that the section passes constitutional muster. However, the Court maintains that this is not the way that the section reads.
Finally, the Court dealt with the question as to what might happen if a legitimate criticism of government policy leads to or causes the things mentioned in section 11(1)(c), that is, to the dissemination of ideas based on racial superiority. Citing relevant dicta in Kauesa, Frank J held that unlike the Canadian legislation in this field (sections 318 and 319 of the Canadian Criminal Code) its Namibian counterpart makes no allowance for statements relevant to matters of public interest or even for criticism which, although it may cause disharmony, is proffered with the purpose of removing racist practices.
The Court found that section 11(1) is in conflict with Article 21(1) of the Namibian Constitution. The Court stated that the section cannot be saved by the mere excising of words or phrases and as such, section 11(1) will have to be reconsidered and amended by Parliament within six months. As it presently stands, the section cannot however be used as a basis for prosecution and the charges against the accused were accordingly quashed.
Tracy Cohen, Media Project, Centre For Applied Legal Studies