South Africa

Abstract

Listen

Translate article

Abstract South African judges, using a process of common law reasoning, seek to reconcile the 1996 Constitution’s mandate for the respect of dignity, equality, and human freedom, which constitute South Africa’s apex constitutional rights, as well as its foundational constitutional values, with a free and open marketplace of political ideas. Despite clear textual signals that seem to elevate these apex rights over freedom of expression, the Constitutional Court of South Africa has embarked on a program of harmonization that seeks to integrate speech and expressive freedom more generally with equality, dignity, and freedom. It is not possible to conduct free and fair elections without the possibility of an open and wide-ranging debate about the policies that the government should pursue (and those it should abjure). A government empowered to censor core political speech, even if doing so in the name of equality and dignity, presents an existential risk to the process of democratic deliberation. South African judges, cognizant of South Africa’s fraught history with official government censorship during the apartheid era, deploy a process of common law constitutionalism to ensure that citizens remain free to speak their version of truth to power. Were political speech in South Africa subject to blanket government censorship whenever the elected branches deem such censorship necessary to promote dignity, equality, and human freedom, the government’s power to distort the operation of the marketplace of political ideas would fatally undermine the use of elections as a means of conferring legitimacy on the government.