No Free Speech for Malema - Are Police Abusing their Powers in Marikana? By Paul Ngobeni.

The South African government seems to have perfected the art of making incomprehensible and downright asinine decisions especially when it comes to Julius Malema.  A case in point is the announcement by the Hawks that this specialized elite police unit would investigate Malema for alleged incitement and intimidation based on an alleged complaint from Solidarity.[1]  As a constitutional democracy we must not forget that Malema’s mere expulsion from the ANC can never be used as a basis for the forfeiture of his rights as a South African citizen and a human being.   But that is a difficult proposition to accept in a society where the lines of demarcation between party and state are not clearly understood. Lamentably, it is not just the ANC but also the rest of the hypocritical so-called civil society, which has endorsed the notion that Malema is a “monster” and thus less deserving of any constitutional rights, including the rights to free speech and dignity.  Early this year, Archbishop Emeritus Desmond Tutu admonished his fellow citizens against calling Johan Kotze, a white murder and rape suspect, a “monster.”  Kotze, has appeared in court on charges of having had his ex-wife gang-raped and mutilated, and shooting her son, killing him.  With characteristic piety, Tutu stated that Kotze remains a child of God with the capacity to become a saint and shouldn’t be labelled the “Modimolle monster”.  The Archbishop Emeritus felt so strongly about this issue, he penned a special article to The Star newspaper, appealing to society to stop calling Kotze a monster.    He stated: “What is disturbing, however, is when our outrage leads us to dub the alleged perpetrator ‘the monster from Modimolle’, as the media has been doing.”    Tutu further stated Kotze may: “… indeed be guilty of inhuman, ghastly and monstrous deeds, but he is not a monster.”

But our society seems to have adopted a different standard of humanity when it comes to Malema.  Just last week, parliamentarians (including black puppets of Zille in the DA), called Malema a “monster” during their discussions with President Zuma in parliament.  Zuma ignored Tutu’s admonition and failed to insist that Malema’s right to dignity be respected.  Instead of a firm rebuke to the DA politicians, Zuma simply replied that:  “I shouldn’t be blamed for somebody who has some characteristic of his own. It’s not my fault. I never participated in the production of such a person.”  It is a sad reality of our post-Mandela South Africa that serious objections are raised against describing as a “monster” a white man who mutilates his wife and solicits a bunch of criminals to brutally rape her after he shot her son to death and yet it is considered acceptable to call a black man a “monster” simply because people disagree with his politics.   This leads me to a discussion of some of the substantive legal issues emanating from the Hawks incompetent handling of the so-called Malema investigation. 

The Hawks – more formally known as the Directorate for Priority Crime Investigations (DPCI) – are an elite crime-fighting unit established in 2009 after the Scorpions (DSO) were disbanded.  I must confess that I was one of those who viewed the Concourt’s judgement in Glenister, with a dose of skepticism.  The establishment of the Hawks was itself mired in legal controversy.  In March 2011 the Concourt ruled that the 2008 SAPS Amendment Act, which established the Hawks unit and set out how it would be governed, did not meet constitutional requirements for an effective corruption-fighting body free of political influence.  By all appearances, the Hawks have now launched a publicly announced investigation of Malema for alleged crimes of incitement and intimidation.  As if to underscore the point about the Hawks’ lack of independence, the unit acted with alacrity to launch the investigation immediately after high-ranking ANC cabinet members and Zuma expressed their displeasure with Malema’s political antics in Marikana.  What is baffling about this move is that incitement and intimidation are simple or ordinary crimes routinely investigated by competent police officers almost every day without much fanfare.   Therefore, the suspicious timing of the investigation and the targeting of Malema will do nothing to allay the fear that the Hawks, like the Scorpions before them, are being used to fight partisan political battles.  Those who were vociferously calling for the NPA to defer charging the miners until after the Commission of Inquiry has completed its work (these include Cosatu, ANC leaders and so-called law professors[2]) are now deafeningly silent when the target of the police action is Malema. Why the hypocrisy and double standard in our national discourse?

Substantively, the Hawks have advanced very flimsy excuses for the investigation of Malema at this time.  Through a strategy of obfuscation and transparent falsehood, the Hawks spokesperson McIntosh Polela claimed the Hawks "are investigating charges that have been brought by Solidarity."[3]   Since when have the Hawks treated complaints against Malema by Solidarity and Afri-Forum as priorities?  Polela claims: "They have opened a case of incitement and intimidation. It has been referred to us and we are currently gathering information to help us with our investigation."  Cases of intimidation are reported to the police by domestic violence victims every day without being handed over to an elite crime-fighting unit, the Hawks, for investigation.  Our police force which was trained in apartheid crowd control methods and crime investigation is very familiar with the crime of incitement under our law – there is nothing specialized or complex about that offence.  Why abuse the state resources and why deploy specialist crime-fighters in a matter simply because Malema is involved?  Perhaps a more sinister agenda of intimidation may be afoot.

 Even assuming that everything about the Hawks' action is above board, why was it necessary for the Hawks to publicly announce that Malema is being targeted for investigation?  Obviously, the intent is to intimidate Malema through such statements, dissuade others from associating with him and to chill his political activities which continue to be a source of consternation among the political elite.   These tactics of using investigations to tarnish reputations and to scare people into retreating from public life were standard modus operandi for the disbanded scorpions (DSO) which were roundly condemned by the Khampepe Commission.  The latter found evidence that the myriad of public complaints relating to the leaking of information by the DSO were well founded.  It held that such unlawful action is unconstitutional and “causes prejudice or embarrassment to those who are the subject matter of the investigations.” Khampepe found evidence of abuse in the manner in which the DSO publicizes its work to the media “FBI style” meaning “that the DSO conducts its operations as though it were a law unto itself.”  It found such “conduct to be out of kilter with our constitution, reprehensible, unprofessional and corroding the public’s confidence in the law enforcement agencies.”   Some of us vociferously complained when Zuma’s rights to a presumption of innocence were violated, and we were justifiably outraged when Zuma’s right not to be subjected to degrading treatment were violated by the NPA Director’s public statements about the existence of a ‘prima facie case” against Zuma.   In equal measure, and for the sake of consistency and fairness, we should be outraged when the Hawks make well-timed announcements about Malema’s “investigation” to the public.

In Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of Public Prosecutions, Zuma v National Director of Public Prosecutions (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC); 2009 (3) BCLR 309 (CC) (31 July 2008), Mr. Zuma, who was facing corruption charges in 2008, challenged the constitutionality of search-and-seizure warrants used by the Scorpions three years earlier to gather information from the offices of his lawyer, Mike Hulley. The entire Constitutional Court, with the exception of Ngcobo, ruled the warrants to be legal.   In the process of rendering the judgment, the Concourt dealt with Zuma’s plaint that his right to privacy and dignity had been violated by the manner in which the state had unduly publicized the criminal accusations against him.  The Concourt made the following interesting observations:

 [49]  At a broad level, this issue reflects the tension between Mr Zuma’s claims to the right to dignity and the duty of the NDPP in his constitutionally-mandated role and function to prosecute crime.  The state has a constitutional obligation to protect society against serious crimes, such as corruption and fraud.

           [50]  Dignity is indeed an important right and value in our Constitution. S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC); 1995 (2) SACR 1 (CC) at paras 144 and 328-9.  Like any other right in the Bill of Rights, it may be limited subject to section 36 of the Constitution.  The right to dignity however, does not necessarily extend to the right not to be named as a suspect, once there is a reasonable suspicion that a crime has been committed.

[51] There is currently no jurisprudence on the conflict between the right to dignity and the state’s duty to fulfil its mandate in terms of sections 179 and 205 of the Constitution. ..  But there is much on the issue of the conflict between the rights to free expression and to dignity. For a summary of developments in this area, see Currie and De Waal The Bill of Rights Handbook 5 ed (Juta, Cape Town 2005) at 383-92.  However, that jurisprudence is of no use to Mr Zuma.  One of the primary defences against defamation, viewed as an injury to one’s dignity, is the defence of truth. That Mr Zuma is suspected of alleged corruption is the truth; it does not signify his guilt.  His right to be presumed innocent under section 35(3)(h) remains untrammelled.  What the NDPP has done is therefore no more than to communicate the objective fact that Mr Zuma is a suspect in a criminal matter.  By analogy, this defence of truth could in principle apply and protect the NDPP from any interference in his constitutionally-mandated function. 

At face value, the  Concourt judgment suggests that the NPA or the police have untrammeled right to announce that persons are being investigated for alleged criminal offences even if no charges are ultimately pursued.  Such damnable practices if left unchecked can be used for the political persecution of persons targeted for investigations.  They were successfully used against Advocate Ramatlhodi, a member of the ANC's national executive committee, when he applied to the Pretoria High Court on many occasions to be admitted as an advocate.[4] Ramatlhodi’s first bid was in 2004, when it was rumoured that he was due to take over from then prosecutions head Bulelani Ngcuka.  A corruption probe involving Ramatlhodi had already been under way for a number of years.  In 2004, Judge Hekkie Daniels, based on nothing more than the pendency of such investigation,  postponed Ramatlhodi's application to be admitted as an advocate indefinitely, and ordered that the matter may not be enrolled for hearing until such time as the probe involving Ramatlhodi had been disposed of.  Nearly four years elapsed and when Ramatlhodi once again launched another bid to be admitted as an advocate, the untransformed Pretoria Bar opposed his application and asked the court for leave to intervene, stating in an affidavit that "from inquiries made to the office of the National Prosecuting Authority, a decision has been made to proffer criminal charges against the applicant (Ramatlhodi)".  That was of course, a lie by these reactionary advocates -  Ramatlhodi was never charged but the damage inflicted on him by the NPA’s misuse of the investigation process was incalculable.  Viewed with this prism, the Hawks’ public pronouncement and proposed actions against Malema call for vigilance by those who care about our constitution and those who reject misuse of state institutions for partisan political battles.  

The second issue to be scrutinized is the substantive allegations that Malema could be guilty of “incitement and intimidation” worth investigating.   It is noteworthy that Solidarity, the alleged source of the complaint is a reactionary grouping exclusively concerned with white supremacy and white special interests.  Its actions are clearly out of kilter with the constitution and it is indeed doubtful whether this outfit can recognize “incitement” even if it bit its members in the ass.  Both the Hawks and Solidarity are embarking on a politically motivated fishing expedition based on a gross distortion of the facts and the law.  To start with, Malema arrived in Marikana two days after the shooting of the miners took place – his investigation for alleged incitement can only be in reference to actions he took or speeches he made in the aftermath of the Marikana massacre.   Regarding the allegations that Malema is some opportunist hell-bent on exploiting real and imagined grievances of the miners for his own political agenda, it is noteworthy that Malema conceived of and propagated a very prescient political strategy focusing on gross exploitation of mineworkers long before there was Marikana.  To the chagrin of his ANC colleagues, Malema and the ANCYL shepherded their nationalization programme through many hostile audiences, including the news media until the matter received serious attention at appropriate ANC policy conferences.   Unleashing the Hawks to investigate Malema amidst claims of political opportunism on his part threatens to erode the public confidence in the police and to expose the Hawks as nothing more than a political strike force lacking in rudimentary independence.  It actually vindicates the judiciary which has thus far been reviled for having a political agenda that is manifested in court rulings such as the Glenister judgment.

It is undisputable that our Constitution contains the Bill of Rights, a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa, including even Malema. The rights in the Bill apply to all law, including the common law, and bind all branches of the government, including the national executive, Parliament, the judiciary, provincial governments and municipal councils.  Section 16 contains detailed provisions regarding freedom of expression, and states that everyone has “the right to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research.”  The only cognizable limitations to freedom of expression in Section 16  are as follows: “The right in subsection (1) does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”  In addition, Section 17 of the Constitution states “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” 

The “incitement” proscribed by the constitution is not just every form of incitement – it is only “incitement of imminent violence.”  Juxtaposed to these provisions of the Constitution must be the statute under which Malema may potentially be charged, that is, section 18(2) of the Riotous Assemblies Act. This provision states that:

“(2) Any person who –

(a) conspires with any other person to aid or procure the commission of or to commit; or

(b) incites, instigates, commands, or procures any other person to commit,  any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.”

Of course, one must also take into account other provisions of the constitution in which the rights of the complainants (Solidarity) are enshrined, that is section 12(1) of the Constitution which provides that:

'12(1) Everyone has the right to freedom and security of the person, which includes the right -

…..

(c) to be free from all forms of violence from either public or private sources;

......

(e) not to be treated or punished in a cruel, inhuman or degrading way.'

In addition to the Constitution, these rights have also been codified and acknowledged in section 1(1) of the Intimidation Act, No 72 of 1982 which provides as follows:  

(1) Any person who -

(a) without lawful reason and with intent to compel or induce any person or persons of a particular nature, class or kind or persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint -

(i) assaults, injures or causes damage to any person; or

(ii) in any manner threatens to kill, assault, injure or cause damage to any person or persons of a particular nature, class or kind; or

(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect or that it might reasonably be expected that the natural and probably consequence thereof would be, that a person perceiving the act. conduct utterance or publication-

(i) fears for his own safety or the safety of his property or the security of his livelihood, or the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person: and

(ii) ...[Sub-para, (ii) deleted by s6 of Act 126 of 1992.]

shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.'

What we must seriously interrogate here is the meaning of “incitement of imminent violence” within our Constitution.   It is tempting to use the institutions of the state to silence political dissidents especially when their hard-hitting speeches and raw organizing abilities threaten certain vested interests.  But we would do well to learn the lessons from other major democracies in this regard.   As long ago as 1924, when the Americans were targeting

a mixture of 'dangerous' Bolsheviks and anarcho-syndicalists for investigation and criminal prosecution, Justices Oliver Wendell Holmes and Brandeis spoke out against these measures designed solely to suppress unpopular speech by dissident groups or individuals.  They condemned tendency-based crimes as inimical to the protection of freedom of expression and freedom of the press embodied in the First Amendment to the United States Constitution.  Accordingly, they issued the following admonition to those who care about freedom:

              Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in totalitarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. Gitlow v New York 268 US 652 at 673.

The majority in Gitlow, expanding the “clear and present danger” test established in earlier case-law, Schenck v. United States (1919), held that states can “punish utterances endangering the foundations of government and threatening its overthrow by unlawful means” because such speech would “present a sufficient danger to the public peace and to the security of the State.”   But that approach was narrowed considerably during the struggles of the Civil Rights and anti-Vietnam War movements.  Even appeals for the overthrow of the government were to be protected 'except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action'. See, Brandenburg v Ohio 395 US 444, 447 (1969).  There the US Supreme Court reversed the conviction of a white supremacist (Ku Klux Klan) leader who gave a speech warning "that there might have to be some revengeance taken" for "continued suppression of the white, Caucasian race."  The Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  In short, the First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action.  Under the imminent lawless action test, speech can only be denied protection under the free speech provision of the constitution if the speaker intends to incite a violation of the law that is both imminent and likely.  It is doubtful whether Malema’s call for a revolution in mining can be construed as advocacy calculated to produce such “imminent lawless action.”

While the precise meaning of "imminent" remained ambiguous in some cases, the US court dealt with the issue again in Hess v. Indiana 414 U.S. at 106 (1973).   There, the defendant challenged a conviction of disorderly conduct. The Supreme Court reversed. The facts are set out in the opinion as follows:

The events leading to Hess' conviction began with an antiwar demonstration on the campus of Indiana University. In the course of the demonstration, approximately 100 to 150 of the demonstrators moved onto a public street and blocked the passage of vehicles. When the demonstrators did not respond to verbal directions from the sheriff to clear the street, the sheriff and his deputies began walking up the street, and the demonstrators in their path moved to the curbs on either side, joining a large number of spectators who had gathered. Hess was standing off the street as the sheriff passed him. The sheriff heard Hess utter the word "fuck" in what he later described as a loud voice and immediately

arrested him on the disorderly conduct charge. It was later stipulated that what the appellant had said was "We'll take the fucking street later," or "We'll take the fucking street again."

414 U.S. at 106, 107.

The US Supreme Court clarified what constitutes imminent lawless action.  In the court’s view, the speech involved in Hess “was not directed to any person or group of persons” therefore “it cannot be said that [the speaker] was advocating, in the normal sense, any action.” The Court also said that “since there was no evidence, or rational inference from the import of the language, that [the speaker’s] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”  The court stated that the speech “… at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech.”   The court concluded that for the speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical.  In addition, there must be an expectation that the speech will in fact lead to lawless action.

The test articulated in the cases mentioned before and the specific provisions of our constitution make it abundantly clear that it would be an uphill battle for the state to charge Malema based on a nebulous theory of “incitement” borrowed from apartheid criminal justice system.  Arguably, our constitution has a more  exacting standard in that it requires that the incitement not merely be advocacy of some illegal action at some point in the future, it must be “incitement of imminent violence” not simply advocacy of illegal action at some indefinite future time. 

The political context of speech is also very important.  In another US case,

NAACP v. Clairborne Hardware, 458 U.S. 886 (1982),  the court reversed a judgment of the Mississippi Supreme Court for damages arising out of a boycott and other activities against two corporations, their leaders and 144 individuals who participated in the boycott. The theory of the Mississippi Supreme Court was that the defendants had entered into an illegal conspiracy to use force and violence. The Mississippi Supreme Court stated: “The agreed use of illegal force,

violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy.”  The defendants were identified as (a) "managers" -79 individuals who regularly attended meetings and 11 persons who took leadership roles; (b) 22 members of the "Black Hats" -- a special group organized to enforce the boycott and 19 individuals who were "store watchers"; and (c) 16 individuals for whom there is direct evidence of participation in violence. Charles Evers was alleged to be liable because he threatened violence.  The United States Supreme Court held that the boycott was a form of speech protected by the First and Fourteenth Amendment and emphasized the importance of freedom of association.   The Court found First Amendment protection for the NAACP's practice of writing down names of blacks who violated a boycott of certain white businesses, and then reading them aloud at NAACP meetings.  The Court held further that the right of association does not lose all constitutional protection merely because some members of the group may have participated in conduct that itself is not protected. Id. at 908.  It did not matter that some of the people whose names were read out may have felt intimidated.  In specific regard to Evers’ protected speech, the Court ruled as follows:

While many of the comments in Evers' speeches might have contemplated "discipline" in the permissible form of social ostracism, it cannot be denied that references to the possibility that necks would be broken and to the fact that the Sheriff could not sleep with boycott violators at night implicitly conveyed a sterner message. In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence whether or not improper discipline was specifically intended.

Id. at 458 U.S. at 927.

The Court also found that Evers’ statement to the effect that, "If we catch any of you going in any of them racist stores, we're going to break your damn neck"  was constitutionally protected. The Court said despite his words evidence did not establish that the speech authorized, ratified, or directly threatened acts of violence.    When viewed against the background that Charles Evers' emotionally charged rhetoric was constitutionally protected, it seems asinine to suggest that Malema’s benign rhetoric as quoted in the newspapers, can without more, constitute actionable incitement.  It is unlikely that any investigation would reveal that the speech engaged in by Malema was made under circumstances where violence would be the immediate result of the speech.   Our constitution’s protection for speech mirrors the “imminent threat” jurisprudence of the US courts – incitement of violence is prohibited and the existing general criminal law of incitement to violence inherited from our apartheid past must take proximity and degree of harm into account if they are to pass constitutional muster.

Malema’s criticism of the police and the Police Minister is also protected by the constitution.  The US Supreme Court has held that the “First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. at 461 (noting that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state”).   “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). The hallmark of the protection of free speech is to allow “free trade in ideas”–even ideas that the overwhelming majority of people might find distasteful or discomforting. Virginia v. Black, 538 U.S. 343, 358 (2003).  “A principal ‘function of free speech under our system of government is to invite dispute. Ironically, it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’” Johnson, 491 U.S. at 408-409 (citing Terminiello v.Chicago, 337 U.S. 1, 4 (1949)).   The police targeting of Malema after he criticized the Police Minister and the police action in Marikana also raises the specter of retaliatory action which is unconstitutional.   The unsightly scenes of police using bullying tactics in which they push and shove Malema is exactly what should not be happening in a democracy. 

A mature society also recognizes hyperbole in political speech.   In Watts v. United States, 394 U.S. 705 (1969), the US Supreme Court reversed a conviction

of a defendant for threatening the life of the President.  At a rally on the Washington Monument grounds, the gentleman stated he would refuse to be drafted into the armed forces to fight in the Vietnam war and "if they ever make me carry a rifle the first man I want in my sights is L.B.J [the President]."  The Supreme Court stated that:

We do not believe that the kind of political hyperbole indulged in by  petitioner fits within the statutory term. For we must interpret the language Congress chose "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, or wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 4 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), is often vituperative, abusive, and inexact. 394 U.S. 708.

Our treatment of Malema and others with whom we disagree will severely test whether as a country, we have the profound national commitment to the principle that debate on public issues should be uninhibited, robust, or wide-open.  Our tolerance of vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials by Malema or anyone will be a litmus test of how far we have matured as a society since the advent of our democracy.   

Cases from another major democracy, India, are also very instructive and suggest that our gadarene rush to put pressure on Malema is a foolish move likely to backfire.   Almost fifty years ago, the Indian Supreme Court in a landmark ruling, Kedar Nath Singh vs State of Bihar, 1962 AIR 955 1962 SCR Supl. (2) 769, ruled that unless the accused incited violence by their speech or action, it would no longer constitute sedition, as it would otherwise violate the right to freedom of speech guaranteed by the Constitution.  The decision was a consolidated ruling on appeals in four cases.  In this case, Kedar Nath Sing, a member of the Forward Communist Party in Bihar, accused the Congress Party of corruption, black-marketing and tyranny and targeted Vinobha Bhave’s attempts to redistribute land. He talked about a revolution that would overthrow capitalists, zamindars and Congress leaders.  Sing is alleged to have said:

(a) “To-day the dogs of the C. I. D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to-day. The blood of our brothers- mazdoors and Kishanas is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas.”

(c) “The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India.”. . . .

The court stated:

   

 "[C]riticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order."

The Court, while upholding the constitutionality of the judgement distinguished between “the Government established by law” and “person’s for the time being engaged in carrying on the administration”. The Court distinguished clearly between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence:

              Government established by law is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State. That is why ‘sedition’, as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State.

              Hence any acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.

              In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section.

              Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.

The Court went on to say:

    This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.

 Thus the Indian Supreme Court upheld the constitutionality of the sedition law, while at the same time curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.

Having witnessed the brazenly heavy-handed tactics used by the police to prevent Malema from addressing the striking miners, I am now forced to conclude that the police may not be acting in the requisite professional manner or exercising their discretion to maintain law and order.  It is testimony to the gross incompetence of the police, especially the Hawks, that after more than three weeks of Malema’s interaction with the workers and his constant delivery of speeches, the Hawks still need to investigate what exactly Malema may have said to incite the workers.  It is inconceivable that police intelligence officials did not have these alleged violent miners under surveillance, including monitoring their invited rabble-rousing guest speakers.   Quite certainly, if the Hawks had some other evidence that would bring Malema’s actions within the scope of the prohibitions of the incitement or intimidation statutes, they would have obtained a lawful court order barring him from the area or effected his arrest.   There is a reason why they have failed to do so - most of Malema’s public pronouncements so far, either singly or cumulatively, simply do not come even close to making a case for incitement or intimidation.   Malema is reported to have said: "President Zuma decided over the massacre of our people. He must step down."  That may be insulting to Zuma but it is not a crime. He also said Mthethwa should also resign because the police shot people under his command.  Malema demanded: "He must resign because he failed in executing his duties."  Again, legitimate political speech which is fully protected under the Constitution.  Further, Malema told the crowd that the police were supposed to protect them and not kill them. "It has never happened before that so many people were killed in a single day and it became normal," he said.  There is truism in that as well – respectable members of society including ANC ministers have made similar statements.  Malema, who pledged his support for the striking mineworkers urged them not to retreat and to stand firm on their demand for a R12 500 salary.  He said the reason the police shot at the people was because they were protecting the interest of ANC National Executive Committee (NEC) member, Cyril Ramaphosa, who he said owned shares in Lonmin. "Lonmin had a high political connection that is why our people were killed. They were killed to protect the shares of Cyril Ramaphosa," he said.  Some might view such utterance as evidence of Malema going off the deep end and resorting to far-flung conspiracy theories.  Surely, hurling personal insults at Ramaphosa and associating him with murder may be Malema’s retaliation for Ramaphosa’s ruling confirming Malema’s expulsion from the ANC, but Malema’s retaliatory statement in itself is not incitement of imminent violence.   Malema told the gathering that it was amazing that Ramaphosa was able to buy a buffalo for R18-million, but could not pay them the R12 500 they were demanding.  He called on the mineworkers to form a militant union that would represent their interests.  He said that the National Union of Mineworkers (NUM) was no longer a union that represented the interests of the workers, but was more interested in making money. "NUM is not a union, it's a company. They hold shares in mining companies, that is why, when there are problems in the mines, they are the first to sell out the workers." [5]  All of these statements are quintessential political speech and are fully protected in our constitution unless they cross the line and veer into “incitement of imminent violence.”

The answer to Malema’s antics should be more democratic discourse and debates not less, we should open the space for more free speech and debate as opposed to retreating behind the wall of paranoid rhetoric  in which the government seems to suggest it is willing to deploy the police with their Nyalas accompanied by a retinue of SANDF soldiers simply to deal with Malema as an individual.   Not surprisingly, none of the so-called civil society organizations have come to the defence of the constitution simply because it is Julius Malema’s free speech rights being violated.  Organizations that braved cold winters and rain to protest against alleged government secrecy bills are unwilling to stand up for free speech under circumstances where the police have brazenly prevented the exercise of the Section 16 and 17 rights of both the workers and Malema.   It appears that most of the civil society groups which are dominated by white leadership exists to champion the rights of only white citizens against alleged or perceived oppression by the ANC-led government.  Persons including judges perceived to be anti-ANC are hailed as heroes unless it is Julius Malema.    Police officers should never have been given the unbridled licence to ban Malema from entering a stadium in which workers were gathered to hear him speak.  Ironically, organizations that were very upset and went to court over the denial of a visa to Dalai Lama are now spineless and lack the moral courage to defend the rights of South African citizens to freedom of expression, which includes “freedom to receive or impart information or ideas” under our constitution.

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[1] See, http://www.thenewage.co.za/61300-1025-53-Union_charges_Malema Solidarity stated on 6 September 2012 that its action to press charges resulted from Malema’s comments that he believed mines in the country should be made ungovernable.  Another spokesperson for Solidarity, said Malema’s statements about a “mining revolution” were cause for concern.

[2]  See, Open Letter to NDPP Jiba-The Politics of Prosecutorial Independence. By Paul M. Ngobeni: http://constitutionalcrossroads.blogspot.com/2012/09/open-letter-to-ndpp-jiba-politics-of_2595.html

[3] http://mg.co.za/article/2012-09-16-hawks-to-investigate-malema-for-inciting-violence-at-mines

[4] See, Scorpions decide to charge ex-Limpopo premier over graft. http://www.security.co.za/fullStory.asp?NewsId=10800

[5] I borrowed this rendition of the facts from the article: Hawks to probe Malema over violence at SA's mines http://mg.co.za/article/2012-09-16-hawks-to-investigate-malema-for-inciting-violence-at-mines