THEMBELANI MPAKATI | Freedom of expression ranked differently in SA, doesn’t supersede other civil liberties

As the national and provincial elections draw near, we are reminded of how difficult it was for the martyrs of this land to achieve the colourful freedom that today characterises the rainbow nation of the late Archbishop Desmond Tutu.

In 1986, at the boiling point of the apartheid regime in SA and during merciless extended state of emergency, thousands of activists were detained including UDF officials and the Congress of South African Students was banned. Progressives and liberal media became the biggest casualty as the minister of defence, general Magnus Malan announced the completely nationwide restriction of press from covering political unrest related stories. 

Journalism was highly monitored and writing about communism and related subject was criminalised. Imprisonment of journalists, raids, torture and intimidation became order of the day.

We could never forget the efforts of great editors at then newspapers like The World and Rand Daily Mail. The role of political radio stations such as those that were being controlled by ANC cadres that served as hope of a free SA.

Freedom of expression remain as a core value and cornerstone of our constitutional democracy and deserves utmost legal protection. In order to achieve an independent and sustainable freedom of expression as imposed by Section 16 of the Constitution, South African government has since passed the most progressive Act of Parliament (MDDA Act of 2002) to promote media development and diversity.

With all this said, it should be noted that great freedom comes with great responsibility, we have seen lately the emergence of media wars, fake news and the targeting of certain politicians by media companies. That is not what freedom represents.

The media is a powerful tool for building, educating, entertaining and holding the powerful to account while defending the weak.

Unfortunately, the noble concept of freedom of expression is filled with lots of abuses and strangely from the same communities that it seeks to protect.

Unlike in other democracies, in SA our law strikes a balance between protection individuals’ reputation and rights of freedom of expression. Our constitution ranks freedom of expression differently.

It doesn’t treat it as pre-eminent freedom ranking above others. The constitution in its opening statement proclaims three conjoined, reciprocal and covenant values which is human dignity, equality and freedom.

Therefore, freedom of expression doesn’t supersede other rights. 

In the evolving world of technology and social media institutions like MDDA (Media Development and Diversity Agency) are faced with challenges of not only to promote this sacred right but also to educate people about obligations that follow it. The 2021 July unrest were characterised by President Cyril Ramaphosa as, ‘‘nothing less than a deliberate, coordinated, and well-planned attack on democracy’’.

Clearly from the July unrest, it can be deduced that freedom of expression can be very dangerous, it can destroy and end humanity if not properly understood and used.

In celebrating 30 years of our democracy, we should guard against misuse and abuse of human rights and sacred right to freedom of expression in particular.

• Mpakati is a lawyer, human rights activist and Media Development and Diversity Agency board member. He writes in his personal capacity.