Constitutional Review 2016

The law-making process in South Africa allows for civil society to comment and give input into proposed new legislation, including an  annual review of the Constitution. The Board has a long history in contributing to the development of the Constitution starting with our involvement in its original drafting.    

Last week, the Board made a submission for this year’s Constitutional Review, focusing on ‘hate speech’ issues and how the SA Human Rights Commission (SAHRC) could be made more effective in addressing them. In terms of defining prohibited hate speech, we suggested that the current definition takes an overly-narrow approach since it proscribes ‘advocacy of hatred’ only when coupled with ‘incitement to cause harm’. This, we argued, did not take into account the realities of how damaging racist hate speech was in and of itself. In practice, the mere airing of unacceptable views results in ‘harm’, even when harm is not explicitly advocated.

While the SAHRC plays a critical role in enabling members of the public to seek redress when they feel that their right to dignity has been infringed, the section dealing with its powers and functions makes no reference to the right to dignity, and we suggested that this be remedied. We further stressed that for the SAHRC to operate effectively, all parties involved must abide by the rules and procedures it has laid down in terms of investigating complaints. It was therefore recommended that provision be made for the institution to “impose appropriate penalties” for failures to comply with its rules, unless there are legitimate reasons for not having done so.   

Given the times we live in, we unfortunately cannot rely solely on legislation to protect the basic 

rights and security of South African Jews. The reality is that we have to be vigilant against attacks from those for whom the law of our country is irrelevant. Over the past week, a number of high-level warnings have been received from around the world of possible terrorist attacks in South Africa. I urge people to be especially vigilant at this time, and in the event of becoming aware of anything suspicious or unusual taking place in their environment to immediately inform the CSO.

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