Albie Sachs: UCT Needs to be a Paragon of Tolerance

This is one in a series of articles responding to UCT’s decision to rescind an invitation to Danish journalist and writer, Flemming Rose, to give the TB Davie lecture on Academic Freedom. PEN SA President Margie Orford spoke about the matter here and called for responses, all of which can be found here.

By Albie Sachs

One of the most interesting discoveries I made when serving on the Constitutional Court was that there were some problems for which, by their very nature, there could be no correct answers. As in life, so in legal reasoning, intense and irreconcilable interests could be involved. So you sought not to find a foolproof answer to cover all the bases, but rather to balance the interests as well as you could bearing in mind that some loss to the respective interests was inevitable.

I picked up this humbling observation from a minority judgment in the German Constitutional Court. The subject was abortion. Refusing to say categorically that the interests of the woman concerned overcame the interests of the growing foetus, or vice versa, the judgment was based on a contextualised interrelationship between the two sets of interests. This approach seemed to me to be helpful in a case where the Port Elizabeth Municipality sought to evict fifteen African families living in shacks which they had erected on vacant land owned by white families in an upmarket suburb nearby. On the one hand, by living there the occupiers were breaching the constitutional right of the landowners not to be arbitrarily deprived of their property. On the other, the Constitution declared that everyone had the right to adequate housing. The eviction law adopted by the new democratically-elected Parliament required the Court to do what was just and equitable. We noted that what was just to the one side would be inequitable to the other, and vice versa. The Court decided that Justice and equity could best be served by requiring that parties in these circumstances engaged with each other through mediation, with the prospect of finding alternative accommodation for the occupiers. The answer was unsatisfactory to both sides, but the best that could be achieved in the particular context of the case.

I was reminded of the dilemmas posed by these cases when PEN requested its members to comment on the decision by the UCT leadership to disinvite from speaking at UCT, the publisher of the Danish cartoons. On the one hand it was jolting to learn that the Academic Freedom Committee was being compelled to rescind an invitation which it had felt had been designed to open up debate on the very question at issue, namely, what if any limits should there be on free expression. One’s sense of disquiet was strengthened by the fact that it had been the threats of violence on the campus that had been a major motivation for UCT’s decision. If the University is not a place where even the most contentious and explosive issues can be discussed in a rational way, then what is it?

And yet, and yet… the University is a place where all people should feel equally welcome, whatever their faith or belief systems. If it does not provide an exemplary space for tolerance and respect for those of other persuasions, then what is it?

I start with the assumption that the Academic Freedom people are not themselves bigots, and that on the contrary their primary intention is indeed to combat bigotry. Furthermore, in their quest to promote open debate they are willing to countenance personal unpopularity, even vilification. It is precisely when emotions are at their most intense that name-calling should least be used. They can further find strong support from people in the USA who have been in the front line of the fight for civil liberties.

The question is whether what has been referred to as the firstness of the First Amendment in the American Constitution, namely the utter primacy of free speech, should apply in South Africa.

To take two strong examples of this ‘firstness’ in the USA, the courts there struck down a Chicago by-law that would have prevented self-proclaimed Nazis from parading past homes in a suburb where many Holocaust survivors lived. The judiciary also declined to take a position which would have restrained the planting of a burning cross on a pavement in a white area into which a black family had moved. Free speech came first, second and third. Only then did the element of attempting to terrorise the black family into leaving the neighbourhood kick in.

The law’s approach in Germany has been quite the opposite. Holocaust denial can not only be restrained, to propagate it is a criminal offence. Content and context are highly relevant. Free speech bows completely to the foundational principle of human dignity, so profoundly and reverberatively violated by the Holocaust. Indeed, I suspect the Academic Freedom would never dream of inviting a Holocaust denier to speak on the UCT campus simply in order to test the limits of free speech. Similarly, if we denounce hate speech in South Africa today we do so with special memories of the extreme hurt caused over centuries by doctrines of white supremacy. Hate speech not only provokes intense pain. It threatens the very fabric out of which our Constitution is woven.

I believe that hate speech based on religion is equally threatening to constitutionally-based cohesion in our society.

Though I would describe myself as a secular Jew, I recall how moved I was at the opening meeting of CODESA to hear Moslem ,Jewish and Hindu prayers, as well as Christian, being offered. The Moslem community in Cape Town has historically suffered gross forms of exclusion and marginalisation. Moslem slaves imported from the East Indies were denied their language, their culture, their family lives and names. Their religion was driven underground for decades. Even when worship at their mosques was permitted, their marriages were not recognised. Race discrimination intersected with religion to impose deep injury on a whole community.

UCT needs to be a paragon of tolerance. All who go there to study, teach or provide services should feel that their deep spiritual and belief systems are respected. To my mind, the Danish cartoons are grossly offensive not only to Moslems but to all of us who have been fighting for an egalitarian and just society. People come into the University as they are, with the values that constitute their sense of self and dignity. It is the gratuitous threat to the dignity of all on the campus, and not the threat of violence, that obligated the UCT administration to clamp down on the invitation.

The trauma would have been irreversible, while free speech, by its nature, will undoubtedly bounce back and continue to enliven the campus.

Albie Sachs is an author, activist, and former Constitutional Court justice.