Home affairs right to ban anti-gay US pastor
I REFER to William Sauderson-Meyer’s piece last week “A victory the LGBTI might live to regret...” This should not go unchallenged.
In this regard freedom of expression, of which freedom of speech is an integral part, is fundamental to a liberal democracy. It does precipitate jurisprudential issues and complex problems that require dispassionate examination and a judicious weighing up of competing interests in a democratic body politic.
Within liberal democracies, such as South Africa, the UK and the US, the extent of freedom of speech will depend on the nature of the constitutional dispensation of the country concerned.
The contentious issue in South Africa is the extent to which freedom of speech should be permitted and the way in which the courts balance it against equally fundamental rights and considerations applying in a democratic society such as, inter alia, the right to human dignity, equality and privacy.
Chapter 2 of the constitution, which encapsulates the Bill of Rights, contains no express hierarchy of rights. However, in the light of our traumatic and tragic history of institutionalised discrimination, human dignity and equality are regarded as pre-eminent.
Although freedom of speech, set out in section 16(1) is regarded as the cornerstone of a liberal democracy, it like other rights in our constitution, is not absolute. It is subject to the general limitation clause found in section 36, as well as the limitation set out in section 16(2). The latter states this right does not extend to propaganda for war, incitement of imminent violence, advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.
In the light of the above, the banning of the anti-gay US pastor, Steven Anderson, must be considered. The Minister of Home Affairs, Malusi Gigaba, explained that the prohibition from entering South Africa was taken in terms of a section in the Immigration Act, which allows for banning of a foreigner who is a member or adherent of an association or organisation advocating the practice of racial hatred or social violence.
From the statements and explanation given by Gigaba, it is evident he deliberated and gave careful thought and attention to the decision he has taken. A careful examination of the statement indicates that he has acted in terms of the relevant section of the Immigration Act and section 16 of the constitution.
Furthermore, the banning by the minister is in my view a sensible and necessary decision, since the lesbian, gay, bisexual, and transgender minority in South Africa is a vulnerable one and requires the protection afforded by section 9 of the constitution, which guarantees equality for all our people and prohibits discrimination on the grounds of, inter alia, sexual orientation. As a vulnerable community they are in need of protection.
The outrageous and bigoted views expressed by Anderson are permissible in the US because freedom of speech is more extensive and as a result hate speech as defined in South Africa is not prohibited. Although the decision can be challenged in the courts, I am of the view that his decision would be upheld by the judiciary if taken on review.