by Mayibuye Magwaza

This will probably be my last post – Laurence should be back soon.

South Africa’s Constitution is on a pretty high pedestal in South African political discourse. We are informed that it is progressive and wonderful and in general, it’s rarely questioned or challenged.

This is good, to the extent that it ought to frame most political discussion. It’s a healthy sign that the Constitution receives at least overt respect. Some of it A lot of it may just be lip service – Zille certainly thinks so – but it’s good that it exists, anyway.

I do sometimes wonder if there’s a minor tendency to engage in what you might call an ‘argumentum ad constitution’ fallacy. If the Constitution says X is right, X is obviously right. Death penalty? The Constitution doesn’t allow it. Less welfare spending? The Constitution. It’s in the Bill of Rights, see? Right to housing and food, written in black and white.

No significant voices in the South African discourse seriously question whether people should have a right to housing and food. However, this isn’t actually taken as a given in most parts of the world. Many countries do have welfare systems, but they don’t generally guarantee their citizens a minimum living standard in their Constitutions. The US Constitution certainly doesn’t, being largely concerned with negative rights. The government (or any other person) may not do X, Y and Z.

In South Africa, though, we’ve all got nice shiny positive rights. The government (or someone else) owes us. We deserve stuff.

With all this in mind, the part of the bill of rights that that I take issue with is the right to human dignity. This right is vague and it’s simply unclear why it’s necessary. Remove the ‘right to dignity’ and the Constitution is still adequate. What is the right to dignity? Why does it need to be enshrined in the Constitution?
Does it mean that people’s feelings should not be hurt? What, precisely, is this right needed for? Why is it a cornerstone of our democracy?

In this Youtube video, the commenters viciously mock a fat woman. Would this be unconstitutional in South Africa? Or does their right to mock her trump her right to dignity? Presumably the right to mock fat people is protected in South Africa, thanks to our freedom of speech.

Or is it? After all, during the controversy over the Danish Mohammed cartoons, High Court Judge Mohammed Jajbay found that Muslim’s dignity was being affronted. Does this mean that we may no longer mock Islam, or any other religion? Is it unconstitutional to draw Mohammed wearing a burqa, or depict Christians as deluded, as this video does?

Fat people are not a significant constituency in the South African polity, and I have no particular desire to make a website dedicated to mocking their dietary choices. Nor do I think the Muslim cartoon case is terribly significant in the long run. Muslims are a very small minority in South Africa, and I don’t think they have much leverage in public discourse.

What I do fear is that the right to dignity supports a notion of what I’d like to call ‘emotional entitlement’. People have a right to feel certain ways*. You aren’t allowed to upset their important feelings. Never mind the actual, real life harm (or lack thereof)

As a principle of law, it should be plain why this is problematic. The notion that we are responsible for how others feel – that we are barred from doing things that will generate certain emotions – is hopelessly flawed. The obvious way to generate example is to make up a deeply unreasonable belief / emotion linkage. One might posit a religion constituted such that it finds anyone eating of cheese deeply humiliating.

This example isn’t terribly convincing, because we generally intuit that the Muslims were not being totally unfair in feeling put upon and offended by the cartoons. There was some validity to their feelings – they were not being unreasonable in being offended by the cartoons.

However, this misses the point.

The question is not whether Muslims were being reasonable in feeling offended by those cartoons. The question is whether the Muslims were suffering such grievous harm from those cartoons being published that it really justified a ban on every other person in South Africa from publishing or distributing those cartoons. I do not think so. When you get right down to it, not a single person suffered anything other than emotional upset from those cartoons. Oh, sure, there were riots and fires and killings afterwards – but those were all from Muslims or overzealous security forces responding to protests. It is completely unclear what damage would actually have been caused by the Sunday Times et al reproducing those cartoons on their front pages at news stands all over the country. Muslims might not have been happy, but they could boycott the newspaper, write to the editor, or marched in the streets**. They would not have lost their jobs or homes or anything else meaningful from the cartoons being published.

Ultimately, the notion that we must not offend one another’s dignity results in media censorship, and possibly a general tendency to reward people who complain the loudest about being offended. Feel your dignity’s at stake? Go to the courts, your rights are being infringed!

I take a dim view of a Constitutional ‘right’ that leads to such results. Certainly, this right needs to be carefully and explicitly limited, if not just removed in its entirety.

*In this case, not-offended and dignified.
**In a legal manner, of course, after securing permission from the relevant authorities.