THE words uttered by President Hage Geingob where he said that whites have declared war against the Swapo Party when they registered in droves for the Regional Council and Local Authority elections were not likely to bring about hatred between different racial groups or between persons belonging to different groups.
The Ombudsman of Namibia, Advocate John Walters, found that the complaint filed by the Popular Democratic Movement of Namibia, about utterances of the President during a speech at the latest Swapo conference was not objectionable because it had different meanings for different people.
Advocate Walters, after investigating the matter, concluded that the words cannot be construed as hate speech and in this regard stated that there is no need to recommend that the matter be pursued criminally.
The full report compiled by Advocate Walters reads as follows:
PERSISTENCE OF RACE – A REPORT ON THE INQUIRY INTO THE COMPLAINT BY THE POPULAR DEMOCRATIC MOVEMENT (PDM) AGAINST THE PRESIDENT OF THE REPUBLIC OF NAMIBIA
The Ombudsman is included in the 1990 Constitution of Namibia and his independence enjoys constitutional supremacy. The Constitution provides that the powers and functions of the Ombudsman shall be defined and prescribed by an Act of Parliament and include those functions and powers set out in Article 91 and 92.
The enabling Act of Parliament which defines and prescribes the functions and the powers of the Ombudsman is the Ombudsman Act 1990, (Act No 7 of 1990) (the Act). The Ombudsman is thus a creature of statute and accordingly his powers are limited to those conferred upon him by the statute; his jurisdiction is established in the statute. The Ombudsman cannot exercise powers which are not expressly stated in the Act or Constitution. There may be instances where authority may be implied in order not to defeat the purpose of the Act.
For the purpose of this inquiry, I will only refer to the relevant functions of the Ombudsman with regard to human rights; they are to receive and investigate any request or complaint in any matter concerning alleged or threatened instances of violations or infringement of fundamental rights and freedoms by the state, private persons or enterprises, by individuals or groups or organizations.
The complainant, the PDM alleged that on or about 17 October 2020 the President was recorded on live footage from The Namibian newspaper uttering the following words:
“We have seen white people registering ……. In big numbers. I have never seen that happening. And they said…. anything else but SWAPO. I have noted it…. and I won’t forget that. People declaring war against SWAPO…. SWAPO who made them to enjoy peace and unity….. enjoy their comforts….. till the comforts they have all this time…. to declare war against SWAPO. I heard you”
According to the complainant the comments by the President were made at the launch of the SWAPO Party’s campaign for the upcoming Regional and Local Authority elections slated for 25 November 2020. “We view the comments of the President as oppressive, intimidating and in contravention of a number of provisions in the Namibian Constitution which protects fundamental rights of all Namibians, particular the right to participate fully in political activity without intimidation or coercion…….
The comments by the President directly infringe on the fundamental rights of white people to participate fully in political activity as protected by Article 17 of the Namibian “Constitution…..”
The complainant further alleged that the President’s comments are also in contravention of the Racial Discrimination Act 26 of 1991, in particular section 11. According to them: “The President’s comments were without a doubt intimidating white people and inciting racial division in Namibia against white people. His comments are so dangerous, and could lead to catastrophic consequences for peace and stability of the country if not condemned and dealt with accordingly.”
The complainant therefore brought the complaint before the Office of the Ombudsman for investigation and remedy.
The Other side of the story
Any Ombudsman’s inquiry or investigation requires that the other party to the complaint be heard; to respond to the allegations made in the complaint and such response must be considered along with all the other information gathered.
Our motto says it all: “The other side of the story,” The rules of natural justice, in particular the audi alteram partem rule requires that the other party be heard. Section 4(1) of the Ombudsman Act, empowers the Ombudsman to determine the nature and extent of the inquiry or investigation. In exercising my discretion and in compliance with the rules of natural justice, I provided the President with the opportunity to respond to the allegations and he responded as follows through his legal representative:
“The comments were made at a political event at the time when political parties and politicians are seeking support from members and sympathizes in the upcoming Regional and Local Authority elections set for next week, 25 November 2020. The comments are therefore political comments to address an observation of a particular state of affairs by the President. The statements do not impliedly or expressly seek to intimidate white people as PDM contends, nor do they seek to make out a case that white people have diminished political rights.
The President was making an observation of big numbers of white people suddenly registering this time around in comparison to the recent past where it was generally observed that that section of the community showed less interest in the National elections. These statements were made in reaction to statements by section of that population to the effect it will vote for anything else but not SWAPO.
The President was entitled to express his view as a citizen of the country and as the President of the SWAPO Party. He was, in the circumstances, entitled to make such comments without infringing any rights under the Constitution or the provisions of section 11 of the Racial Discrimination Prohibition Act. By the way, it is absurd to expect the president at political events to shy away from stating that it was the SWAPO Party that brought peace, freedom and independence in this country. This will be fearlessly restated for years to come.
It follows from the above that the President did not violate any fundamental rights. Had the President’s statements been read in a proper political context and together with the rest of his statement at that occasion PDM would have realized that their interpretation of the statement is quite unfortunate. The President therefore assures PDM and the section of the population concerned that he continues respecting and protecting, as he has always done, every citizen’s right of freely participate in any political activity without hindrance.”
Why a Report
In terms of section 3(1) of the Act, the Ombudsman must enquiry into and investigate the request or complaint and inform the complainant of the outcome. In exercising my discretion, I decided to inform the complainant of the outcome in the form of this report and in the public interest to release the report to the public in view of the media attention which the objectionable utterances attracted.
The legal grey area in which the term “hate speech” finds itself, the lack of judicial precedents on the term, the fact that the amendments to the Act were not “carefully designed to obtain the objective”, necessitated me to look also at past legislation and decisions of foreign jurisdictions to reach my findings.
The Constitution and statute on the complaint
It is expedient to briefly refer what the courts say about the Constitution, especially with regard to racism, apartheid and discrimination.
In Kauesa v Minister of Home Affairs and Others, O’Linn J remarked:¹
“The importance of the prohibition of discrimination on the grounds of race, colour, ethnic origin, sex, religion, creed or social or economic status and the prohibition of the violation of a person’s human dignity and the need to strive to achieve national
reconciliation and to foster peace, unity and a common loyalty are selected for special emphasis in the preamble of the Namibian Consitution.”¹
In Government of the Republic of Namibia v Cultura 2000 & Another, Mohamed C J commented as follows:²
“The Constitution of Namibia articulates a jurisprudential philosophy which, in express and ringing tones, repudiates legislative policies based on the criteria of race and ethnicity, often followed by previous administrations prior to the independence of Namibia.
“Throughout the preamble and substantive structures of the Namibian Constitution there is one golden and unbroken thread – an abiding ‘revulsion’ of racism and apartheid. It articulates a vigorous consciousness of the suffering and the wounds which racism has inflicted on the Namibian people ‘for so long’ and a commitment to build a new nation ‘to cherish and protect the gains of our long struggle’ against the pathology of apartheid. I know of no other Constitution in the world which seeks to identity a legal ethos against apartheid with greater vigour and intensity”²
This basic temper of the Constitution appears throughout from the terms of the preamble itself. The same temper is manifest in article 10 (2) which provides that no person may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status and in the pungent terminology of article 23 (1) which provides.
“The practice of racial discrimination and the practice and ideology of apartheid from which the majority of the people of Namibia have suffered for so long shall be prohibited and by Act of Parliament such practices, and the propagation of such practices, may be rendered criminally punishable by the ordinary courts by means of such punishment as Parliament deems necessary for the purposes of expressing the revulsion of the Namibian people at such practices”³
The Racial Discrimination Prohibition Act, no 26 of 1991 (the Act) was enacted by the National Assembly to give effect to the letter and spirit of the Constitution, Article 23 read with Article 8 and 10 of the Constitution. The Act states inter alia in its long title that it envisages:
“to render criminally punishable in pursuance of the provision of Article 23 of the Namibian Constitution certain acts and practices of racial discrimination and apartheid in relation to public amenities, the provision of goods and services, immovable property, education and medical institution, employment, associations
and religious services and involving the incitement of racial disharmony and victimisation ….” (emphasis added)
Section 11 of the Act creates a serious offence where it provides: (before its amendment):
Inciting racial disharmony
“(1) No person shall publicly use any language or publish or distribute any written matter or display any article or do any act or thing with intent to –
(a) threaten, ridicule or insult any person or group of persons on the ground that such person belongs or such group of persons belong to a particular racial group; or
(b) cause, encourage or incite disharmony or feelings of hostility, hatred or ill-will between different racial groups or persons belonging to different racial groups;
(c) disseminate ideas based on racial superiority,”
The definition section of the Act provides that:
“1. In this Act –
‘racial group’ means a group of persons defined by reference to colour, race, nationality or ethnic or national origin.”
Five years after its promulgation, the constitutionality of section 11 (1) of the Act (limiting freedom of speech) was tested in the case of State vs Smith and Others where Frank J had this to say on p.10:
“For the reasons aforementioned I am of the view that section 11 (1) of the Act cannot be said to impose reasonable restrictions as contemplated in Articles (21) (2) of the Constitution. Firstly, the section was not “carefully designed to achieve the objective in question.” Secondly the section does not “impair ‘as little as possible’ the right ….. in question.” Thirdly it is disproportionate as it stifles and inhibits public debate on issues which are important in Namibia e.g. affirmative action and historical assessments. It follows from the aforegoing that section 11 (1) is overbroad in that it embraces communications which may be prohibited as well as communications which is protected under article 21 (1) of the Constitution”.⁴
Despite the fact that Frank J provided Parliament six months from the date of the judgment (27 September 1996) to amend section 11 (1) of the Act, the Racial Discrimination Prohibition Amendment Act, 1998 (Act 26 of 1998) was promulgated only on 21 September 1998. The Act states inter alia in its long title that it envisages to:
“amend the Racial Discrimination Prohibition Act, 1991, so as to amend the provisions relating to the disseminating of ideas in respect of racial superiority; to create certain defences against prosecution in terms of the Act; to increase penalties in respect of offences…..”
The changes which the 1978 Act brought about, are the deletion of the words:
• “ridicule” in sub section 1 (a)
• “disharmony,” “feeling of hostility and ill-will” in sub section 1(b) and only the word “hatred” remains.
It is my considered view that the amendments were not carefully considered; to remove the word “disharmony” in section 11 (1)(b), but to retain it in the heading of the section and in the long title of the Act, begs the question. The heading may be used to determine the purpose of the section and the long tile forms part of the statute considered by the legislature in the legislative process.
I agree with Frank J where he stated (obiter) on p.6 that:
“In my view the definition of “racial group” in Act no. 26 of 1991 goes far beyond what is required. The definition was not “carefully designed to obtain the objective in question.” And further down:
“The definition goes too far and thus also does not impair the freedom of expression “as little as possible” to achieve the valid societal objective of preventing the scourge of racism raising its ugly head again in this country”.⁵
Interesting to note that the repealed Abolishment of Racial Discrimination (Urban Areas and Public Amenities) Act 1979, (Act 3 of 1979) referred in its definition section also to “racial group” which is defined as:
“racial group” means any class or group of persons of which the members are generally known as whites, non-whites, Natives, Coloureds, Basters, Namas, Bushmen, Asiatics or Indians or of where the members are identified according to their race or colour”
The Act did not state who these members are.
At this stage of the inquiry, it is necessary to go a little back in history.
The Odendal Plan was implemented by the Development of Self-Government for Native Nations in South West Africa Act, No 54 of 1968, which provided for the creation of so-called autonomous “homelands” for each of the main ethnic groups, referred to as native nations, reserved and set apart for their exclusive use and occupation. They are Damaraland, Hereroland, Kaokoland, Kavango, Eastern Caprivi and Owambo.
The South African appointed Administrator-General had legislative power to make proclamations applicable in the territory and to sign into law legislation adopted by the National Assembly e.g:
• The Representative Authorities Proclamation AG 8 of 1980 laid the foundation for a segregated future Namibia. It divided the people of Namibia into 11
ethnic groups and created a so-called second-tier government for each group. The “population groups” so established were in respect of the following:
• The Identification of Persons Act 2 of 1977 compelled all persons over the age of 16 to be in possession of an identity document. In the formal application for such an identity document an applicant had to indicate the population group to whom he/she belongs. The identity document thereafter issued, indicated (by way of a code number) the race of such a person, i.e. 01 Whites, 08 coloureds, etc.
In 1985 the State President of South Africa, acting in terms of Section 38 of the South West Africa Constitution Act, No 39 of 1968, issued Proclamation R101 to establish a Transitional Government of National Unity. Proclamation R101 included the Bill of Fundamental Rights and Objectives in an annexure.⁶
In 1988, the full bench of the Supreme Court of South West Africa⁷ had the opportunity to test the constitutionality of Proclamation AG 8. The court found that the Proclamation in its entirety was in conflict with the Bill of Rights and that the effect of the combined provisions of Proclamation AG 8 and the Identification of Persons Act is that every person in the territory was deemed to be a member of one or other of the 11 population groups by operation of the law and not by free choice and further has no real choice to select the population group he/she wished to belong. As far as the composition of the 11 population groups was concerned, they were generally perceived to be either racial or ethnic groups……the division on these lines is neither truly scientific, nor in certain cases realistic. Berker J (as he then was) continued as follows:
“Without going into any detail, the concept of ‘race’ and ‘ethnicity’ has largely defied legal and, I suspect, also to some extent scientific definition. The difficulties in defining these concepts are dealt with in depth in the House of Lords decision in Mandla and Another v Dowell Lee and Another, reported in  1 All ER 1062 (HL) where the concept of ‘race’ and ‘ethnic origin’ within the meaning of the definition of ‘racial group’ in the English Race Relations Act of 1976 was in issue.
Various definitions of ‘ethnic’ were in that case considered, but eventually the
Court arrived at a definition which it found to be commonly used and which is wider than that strictly racial or biological use on which some definitions are based. The Court gave this concept (‘ethnic’) a meaning which it found to be ‘consistent with the ordinary experience of those who read newspapers at the present day.
As regards to term ‘racial’ in the legal context, Lord Simon of Glaisdale in Ealing London Borough Council v Race Relations Board 1972 AG 362, referring to the long title of the former Race Relations Act of 1968, said:
‘Moreover “racial” is not a term of art, either legal or, I surmise, scientific. I apprehend that anthropologists would dispute how far the word “race” is biologically at all relevant to the species amusingly called homo sapiens’, and later:
‘This is rubbery and elusive language – understandably when the draftsman is dealing with so unprecise a concept as “race” in it’s popular sense and endeavoring to leave no loophole for evasions’.
In this connection it is also of interest to note when the relevant committee of the United Nations dealing with the problems involved in drafting art 27 of the International Covenant of Civil and Political Rights (which as I shall later show is in essence in many respects similar to the provision of art 9 of the Bill of Rights), the committee decided to replace the word ‘racial’ by the word ‘ethnic’ in all references to minority groups described by their ethnic origin. The reason was that it was felt that the term ‘racial’ should be eliminated ‘because so-called racial groupings were not based on scientific facts and tended to become indistinct as a result of evolutionary processes, intermarriage and changes in ideas or beliefs.’
(Capotori Study on the Rights of Persons belonging to Ethnic, Religions and Linguistic Minorities (UN Publications). It was pointed out there that the word ‘ethnic’ seemed to be more appropriate, as it referred to all biological, cultural and historical characteristics, whereas ‘racial’ referred only to inherited physical characteristics.”
The said reality is that the SWA Identity Document is still in use today and has survived apartheid 30 years after Namibia’s independence despite the attempts for a transition to a new identity document.
Schedule 1 to the Communal Land Reform Act, 2002 (Act No 5 of 2002) describes communal land areas as Kaokaland, Damaraland, Owamboland, Kavango, Caprivi, Bushmanland, Hereroland East and West, and Namaland. Only Caprivi was change to Zambezi.
The reason why I refer and discuss above legislation, is to demonstrate that they are examples of legislation that not have effectively been constituted as “past” and in my view just a continuation of the past.
Another example is the “Application for Admission” form of the Namibia University of Science and Technology which requires students to classify themselves under the heading.
Treaties relevant to the complaint
Namibia has ratified and is a state party to the core international and regional human rights treaties. The laws contained in some of these treaties are applicable to the question concerning “hate speech”. They are:
• Convention on the Elimination of All Forms of Racial Discrimination (CERD)
“CERD provides that states who are parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin or which attempt to justify or promote racial hatred and discrimination in any form and undertake to adopt immediate and positive measures designed to eradicate all incitement to or acts of such discrimination and to this end with due regard to the principles embodies in the Universal Declaration of Human Rights and the rights expressly set forth in article 5, provide inter alia that participating states shall:
a) declare an offence punishable by law of all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin and also the provision of any assistance to racial activities including the financing thereof;
(b) declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination and further
that such states recognise participation in such organizations or activities as an offence punishable by law;
(c) not permit pubic authorities or public institutions, national or local to promote or incite racial discrimination”
• The International Covenant on Civil and Political Rights (ICCPR) provides in article 20 that any advocacy of national racial or religious hatred that constitute incitement discrimination, hostility or violence shall be prohibited by law.
Namibia does not have legislation that deal with what is colloquially known as “hate speech.” Hate speech per se is not a criminal offence and it is not define in any legislation in Namibia.
In the Kauesa matter (supra) on p91 E, O’Linn J defined hate speech as follows:
“Speech inciting hatred and prejudice on the grounds of race, colour, ethnic origin, creed or religion is often referred to as hate speech.”
Only public speech or acts which cause, encourage or incite hatred between different racial groups or persons belonging to different racial groups are punishable in Namibia.
With above as background, it is now appropriate to consider the complaint along the following lines.
The Actual Audience
The President was addressing a meeting of the SWAPO Party to launch the Party’s election campaign for the Regional and Local Authorities’ election. The meeting was held in a hall and a limited number of members of the Party attended, who on the probabilities were invited to the meeting.
The True Audience
The Namibia Broadcasting Corporation (NBC) T.V was invited to cover the event and to the knowledge of the President and others it would be anticipated that the NBC TV would publish the event which took place, as indeed the NBC did.
In this regard, Lamont J said the following:
“…. there is good authority that the public at large, even those who did not attend the rallies, must be treated as being the audience at public rallies. The target group of white Afrikaners must be treated as being the audience even although it was not physically present at the rallies. There was publication to that audience in this sense and in the actual sense of publication by the Press”.
The Media Reports and the Public’s Reaction
• The Namibia newspaper of 19 October 2020 reported on its front page:
Geingob blasted over ‘white’ comments …. asked to apologise
“The Popular Democratic Movement says it will file a complaint with the Ombudsman against President Hage Geingob for his ‘threatening and intimidating hate speech against white Namibians”.
Geingob’s comments on white Namibians drew public criticism on social media over the weekend with some likening his statement to the recent remarks by defence minister Peter Hafeni Vilho, who was criticized for accusing white Namibians of being greedy despite allegedly controlling 70% of Namibia’s economy.’
PDM vice president Jennifer van den Heever, in a statement issued yesterday, condemned Geingob’s remarks, saying they were “blatantly threatening, intimidating and indeed an attempt at blackmail against white voters and do not foster the notion of nation building.”
“President Geingob clearly suggested that white Namibians are not at liberty to exercise their own political choices, and participate in political activity, both of which freedoms are enshrined and protected in the Namibian Constitution. The freedom to participate without fear or favour in political activity in Namibia is a fundamental human right protected under Article 17 of the Namibian Constitution,” she said.
She said white Namibians, like any other Namibian, have the right to freedom of choice and are not under any obligation to vote for Swapo.
PDM leader McHenry Venaani said the president should have acknowledged the fact that more white Namibians have registered to vote, as “it is a good sign that they effectively show their civic duty”.
“Trying to victimise them or declaring a vendetta on their real or perceived stance is unconstitutional,” he said.
Republican Party leader Henk Mudge also condemned Geingob’s remarks yesterday and called on the president to apologise, as his remarks were “unfortunate and shocking”. He said the insinuation by Geingob that Swapo was responsible for the peace, unity and comfort that white Namibians enjoy was “absolute nonsense”.
“The rest of Namibia is responsible for that because we are a peace-loving nation and we don’t have to thank Swapo for that. The fact of the matter is that we were reconciled before independence made it easy for independence to take place in a peaceful manner and everybody accepted the results and we carried on,” Mudge said.
• The Namibia newspaper on 20 October 2020 reported:
“Geingob violated racial discrimination law – LAC
President Hage Geingob violated the law prohibiting racial discrimination in Namibia by claiming white Namibians have declared war against SWAPO. This is according to Toni Hancox, director of the Legal Assistance Centre. Hancox in a statement issued yesterday said the right to participate in peaceful political activity does not only extend to those supporting the ruling party. She said if Geingob wanted to criticise voters who hold a particular point of view, he could have done that without basing such criticism on race. The Legal Assistance Centre objects to any characterization of Namibian voters by race or ethnicity. She said it was “profoundly disturbing” to hear race based incite from the president…..”
• The Namibian newspaper on 21 October 2020 reported:
“Advocates condemn Geingob’s ‘irresponsible’ remarks.
… the president of the Society of Advocates of Namibia, Gerson Narib, yesterday said Geingob’s remarks could serve to incite racial disharmony in the country.
‘The statements attributed to the president are irresponsible, disappointing and un becoming …. have no place in a democratic Namibia and conflict with the constitutional guarantee of equality and freedom from racial discrimination”, Narib said. “Of greater disquiet is what could be construed to be some form of veiled caution directed against those persons who do not signal their support for the ruling party. This approach is fundamentally at odds with the Namibian Constitution” he said.”
In the same article the Namibian reported that SWAPO Secretary General Sophia Shaningwa in a statement issued on Monday said the outrage over the President’s remarks was a ‘non-issue.’ She equated the uproar to an election ploy.
“For comrade Geingob to express concern at an election campaign platform about a section of our white compatriots, who we have heard are registering to remove SWAPO from power, does not amount to racial discrimination,” she said
In this statement she also stated: “To use the word ‘war’ … colloquially in the context of an electoral battle is fairly routine, and opposition leaders without an agenda and faultfinding journalists who rush to fill sensational headlines should know better than that. Certain politicians called the SWAPO Party an Owambo organization and there was no haste by the same newspapers in condemning such tribalists utterances. Similarly, Comrade Hage G. Geingob, elected by the rank of file of the SWAPO Party has been called a gatekeeper by virtue of his ethnic origin. This too went without any condemnation.”
The Sun newspaper of 20 October 2020 reported:
“No Need for Geingob to apologise”
SWAPO spokesperson Hilma Nicanor says it is a fact there is a section of white Namibians seeking to unseat her party from power. Nicanor said yesterday that the President’s comments had been blown out of context. According to Nicanor, the President’s statement was justified and was not targeted at all white people in Namibia and as such, it would be unfair to expect him to apologise.”
• The Namibian newspaper of 19 October 2020 also report on the comments of other individuals:
“Political analyst Ndumba Kamwanyah also condemned the President’s remarks saying it was wrong for Geingob to question white Namibian’s rights to participate in election.
“No power, not even the President, should question Namibians right to participate in our elections. Any real democracy would welcome such trend. The President’s statement is unfortunate and threatens our democracy. If anything, it is tantamount to voter intimidation. He is also playing a race card, which is dangerous because it promotes racial intolerance,” he said.
Institute for Pubic Policy Research (IPPR) director Graham Hopwood said Geingob’s statements undermine the principle of ‘One Namibia, one nation’ which Swapo has always stood for”.
“You cannot equate registering to vote with an act of war and if you do, it’s an anti-democratic statement. How does the president presume to know what is in the minds of people when they register to vote even if they are from one racial group?” Hopwood stressed.
However, another political commentator Nico Horn believes the President’s remarks were not as racial as perceived by many. He said he does not understand how Swapo is appalled by the surge in white Namibians registering to vote because “their numbers were insignificant”.
Horn said the President’s statements were “rather an attempt to mobilise Swapo members to go to the polls and show the whites that Swapo is still in control”.
Horn added that: “It will be a pity if it brings a racial tension. But even that will not make an impact on the election results”.
The Video and Written Speech
On my request the NBC provided me with a copy of the video footing which covers the whole proceedings and the speech by the President on the Occasion of the Launch of the SWAPO Party Election Campaign for the 2020 Regional and Local Authority Elections. I studied the video footing to assess the demeanour of the President, listening to his tone of voice and observed the gestures he made.
The objectionable utterance cannot be considered “in a vacuum”; therefore I obtained a copy of the written speech by the President delivered at this occasion in order to place the objectionable utterances in their proper context.
What do the uttered words mean?
The meaning of the statement uttered by the President is in issue. The statement uttered by the President cannot be considered ‘in a vacuum’. The form, context, content, time and place must be considered.¹¹
In order to understand the words uttered it is necessary to place the words in the context in which they were uttered, the circumstances under which the words were uttered, the way in which the words were uttered, the gestures which accompanied the words and what the words imply.¹²
Kriegler J remarked as follows:
“ It would be unwise, if not impossible, to attempt to circumscribe what language and or
conduct would constitute scandalizing the court. The variety of circumstances that could arise, is literally infinite and each case will have to be judge in the context of its own particular circumstances: what was said; what its meaning and import were or were likely to have been understood to be; who the author was; when and where it happened; to whom it was directed at whom or what is was aimed, what trigger the action, what the underlying motivating factors were, who witnessed it; what effect, if any it had on such audience; what the consequences were or were likely to have been.”¹³
Ultimately the test is whether the objectionable utterances, viewed contextually, really was likely to bring about hatred between different racial groups or person belonging to different racial groups; or did the utterances urge, stir up, inflame hatred between different racial groups or persons belonging to different racial groups.
It is necessary at this point of the inquiry to point out that words or utterances that cause, encourage, or incite disharmony or feelings of hostility or ill-will between different racial groups are not punishable under the Act. (emphasis added).
The objectionable utterances in context
The President began his speech as follows:
“I am delighted to be here today to launch the SWAPO Party’s national election campaign for the Regional Council and Local Authority Elections.
Following the Presidential and National Elections of 2019, during which the SWAPO Party was returned as the Ruling Party and myself as Head of State, I said to Namibians, ‘I have heard you’.”
On page 5 of his written statement the President continued:
“Comrades, we must bear in mind that the SWAPO Party and Government policies and programs are always in the best interests of all Namibians.
The SWAPO Party Machine, which we are starting to ignite today, is a powerful and resilient machine, baptized in the extreme heat of the crucibles of the heroic Struggle for Namibia’s independence… Today, as we commence the campaign of the SWAPO Party for the 6th Regional Council and Local Authority Elections, we start firing, our tried and tested SWAPO Machine on all cylinders. The SWAPO Party wings, rank and file members, supporters, and sympathisers are all united with the objective of winning the elections resoundingly, and to deliver prosperity to all Namibians. Comrades, I charge you, to leave no stone unturned to campaign for victory 24/7, from house to house, church to church, village to village, and town to town.”
Then follows the objectionable utterances:
“We have seen white people registering … in big numbers. I have never seen that happening. And they said…. anything but SWAPO. I have noted it… and I won’t forget that. People declaring war against SWAPO…. SWAPO who made them enjoy peace and unity……enjoy their comforts…. Till the comforts they have enjoyed all this time… to declare war against SWAPO. I heard you”.
And he concluded:
I also ask all SWAPO Party members, supporters, and sympathizers to come out in full force, in all the 14 regions and Local Authorities, to the polls on November 25, to vote for the SWAPO Party Candidates.
Together, let us march forward, united in purpose, resolute in our commitment and steadfast in our SWAPO Party ideology.
With these words, I officially launch the Campaign of the SWAPO Party for the 2020 Regional Council and Local Authority Elections.”
The objectionable utterances do not form part of the President’s prepared written speech.
Words can simultaneously have different meanings and mean different things to different persons.
“Words individually have meanings which are elastic in that the meanings they convey can vary substantially. Groups of words similarly have elastic meanings”.¹⁴
A speaker may also deliver his message so as to simultaneously convey multiple meanings to the actual and true audience. At this stage of the inquiry, it is necessary to examine the meaning of the objectionable utterances which difference persons attribute to them.
• The complainant (PDM) read into the objectionable utterances the imputation that “the comments are oppressive, intimidating and in contravention of a number of provisions of the Namibian Constitution… infringing on the fundamental rights of white people to participate fully in political activity; were without a doubt intimidating white people and inciting racial division in Namibia against white people”.
• Henk Mudge, Leader of the Republican Party read into the objectionable utterances the imputation that “the insinuation by Geingob that SWAPO was responsible for the peace and comfort that white Namibians enjoy as ‘absolute nonsense and that we don’t have to thank SWAPO for that”.
• Mr Gerson Narib, President of the Society of Advocates read into the objectionable utterances the imputation that “the remarks can serve to incite racial disharmony and could be construed to be some form of veiled caution directed against those persons who do not signal their support for the ruling party”
• Legal Assistance Centre director Toni Hancox read into the objectionable utterance the imputation “that President Geingob violated the law prohibiting racial discrimination in Namibia by claiming white people have declared war against SWAPO; that they object to any characterization of Namibian voters by race or ethnicity, and [it is] profoundly disturbing to hear race-based incite from the President.”
• Political analyst Ndumba Kamwanyah read into the objectionable utterances the imputation “as unfortunate and threatens our democracy; it is tantamount to voter intimidation; the President is playing a race card which is dangerous because it promotes racial intolerance”
• Institute for Public Policy Research, director Graham Hopwood read into the objectionable utterance the imputation “that it undermines the principle of ‘ One Namibia One Nation’ which SWAPO always stood for,” and the equation of registering to vote with an act of war, is an anti-democratic statement”
• Political commentator Nico Horn read into the objectionable utterances the imputation “that it was not as racial as perceived by many, but rather an attempt to mobilize SWAPO members to go to the polls and show the whites that SWAPO is still in control.”
• Secretary General of the SWAPO Party, Sophia Shaningwa read into the objectionable utterances the imputation “an expression of concern at an election campaign about a section of the white compatriots who they heard as registering to remove SWAPO from power, which does not amount to racial discrimination”.
Placing the objectionable utterances in their proper context
The author of the objectionable utterances is President Hage G Geingob, who is also the President of the SWAPO Party. The objectionable utterances are an extract from his ± 15 minutes speech delivered on 17 October 2020 on the occasion of the launch of the SWAPO Party’s election campaign for the 2020 Regional and Local Authority elections. The occasion was held in the National Assembly Committee Room. The witnesses were members of the SWAPO Party, members of the media and in the objectionable utterances, the white people were the target group. From the video footage it is evident that the objectionable utterances had no effect on the actual audience; they received this part of his message in dead silence; in other parts of his message, they applauded him. There were no immediate consequences flowing from the objectionable utterances, but when they were published in isolation, they unleashed the “anger” of Namibians.
The main thrust of the President’s speech was the acknowledgement that “we heard you” on the areas of improvements you pointed out and the assurances that [we] “are all united with the objective of winning the elections resoundingly, and to deliver prosperity to all Namibians”.
The general theme of the speech as indicated in its heading and by the content of the speech itself is victory at the November 25 polls if all SWAPO Party members come in full force to vote for the SWAPO Party candidates.
The objectionable utterances read in the context of the speech as a whole suggest shock at the lack of gratitude he expects from white people; incite action from Party members which is to unite with the objective of winning the elections in the face of adversary. It is a call to mobilize against opposition.
At this stage the inquiry has to ask whether the harmful effect at which section 11 strikes came about or not. The harmful effect at which section 11 strikes is the causation, encouragement or incitement of hatred between different racial groups or persons belonging to different racial groups. Did this hatred manifest itself between them? From the media reports and comments on social media, one can safely infer that the objectionable utterances did not cause hatred or division between racial groups, but had the opposite effect; they unite the racial groups in their condemnation of the President.
The objectionable utterances may be regarded as offensive, by some people who did not expect it from the President, but diplomacy was never the name of the game during election campaigns in Namibia. Not that I support it, but then I am reminded that the right to freedom of expression is –
“applicable not only to ‘information’ or ‘ideas’ that are favourable received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb… such are the demands of that pluralism, tolerance and broadmindedness without which there is no ’democratic society’.”¹⁵
In applying the objective test with the standard measure of reasonableness, I conclude that the objectionable utterances, viewed contextually really was not likely to bring about hatred between different racial groups or between persons belonging to different racial groups; have in fact the opposite effect of uniting people in their condemnation of the President.
Constitutional Protection from Criminal Proceedings
I have already alluded to the fact that section 11 of the Act creates a serious offence. Even if the objectionable utterances by the President amount to a contravention of section 11 of the Act, in that he caused, encouraged or incited hatred between different racial groups or persons belonging to different racial groups, the President cannot be charged with any criminal offence, because he enjoys immunity from criminal proceeding in terms of Article 31 (2) of the Namibia Constitution.
It would be an exercise in futility to refer the matter to the Prosecutor-General in terms of section 5 (1) (a) (ii) (dd) of the Ombudsman Act.
Do the objectionable utterances constitute a violation of white peoples’ Article 17 constitutional rights to participate in peaceful political activity or to vote?
No one of the target group (white people) came forward claiming that the objectionable utterances by the President violated their Article 17 constitutional rights and in which way.
The complainants “viewed comments of the President as oppressive and without a doubt intimidating white people”. Can it be construed as the only reasonable inference to be drawn from the objectionable utterances, that the utterances were likely to intimidate white people to vote for the SWAPO Party only , not to vote at all, not to vote for any other party, while white people like all other Namibians are aware that one’s vote is one’s secret? Is it not one of those “threats” than can have no consequences?
If am wrong in my interpretation of the objectionable utterance and they indeed amount to intimidation (voter or otherwise), then it is a criminal offence in terms of section 1 of the Intimidation Proclamation, AG 24 of 1989.¹⁶
It will also be “misconduct” under the Guidelines for the Conduct of Political Activities by Political Parties in Respect of Elections. Paragraph 13 directs that, “all allegations of intimidation or other unlawful conduct in the election campaign will be brought to the attention of the Police and to the attention of the Directorate of Elections at the places where they are alleged to have occurred.”¹⁷
• An individual complainant should be resolved in a manner that has an educational purpose; therefore the need for me to step back in our race history to refresh memories of where we came from, where we are and raise the question why “race” persists after 30 years of independence. The question is partly answered in the Report on the National Inquiry into Racism, Racial Discrimination and Other Forms of Discrimination and Tribalism.¹⁸
• Hate speech per se is not an offence in our country. We do not have legislation prohibiting hate speech and the term is not defined so that all speech can be measured against such definition.
• The term “population group” has it origin in the Representative Authorities Proclamation, AG 8 of 1980, which Proclamation was repealed by the Constitution.¹⁹ A case in point of the “past still haunting the present,” is the use of the word “population group” on the application form of NUST which requires students to classify themselves, which has no legal basis and no place in a non racial democratic society.
• The term “racial group” too with its origin in past colonial laws, has no place in a non-racial democratic society.
• Another case in point of the “past haunting the present”, is the continuous use and recognition of the SWA Identity document. It has no place in a non-racial democratic society.
• Public statements which cause, encourage or incite disharmony, feeling of hostility and ill-will between different racial groups or persons belonging to different racial groups, are no longer punishable under the Act.
• The amendment of section 11 of the Racial Discrimination Prohibition Act, 1991 by the 1998 Amendment Act, did not achieve the “valid societal objective of preventing the scourge of racism raising its ugly head again in this country”.²⁰ The Act has fallen in disrepute and disuse because it made it extremely difficult for the prosecution to prosecute and almost impossible to obtain a conviction in a court of law for contravening section 11.²¹
• It appears that “race” has become our identity, that “the wounds which racism has inflicted on us (Namibian people) for so long” are still open and that we have lost our commitment to build a new nation. It further appears that we are now building on the foundation of the segregated Namibia laid by Proclamation A.G. 8. There is an urgent need to “unlearn” racial language and behavior and make “race” irrelevant.
• A draft bill called the Prohibition of Unfair Discrimination, Harassment and Hate Speech Bill has been developed, was circulated amongst stakeholders for input, but the number of responses were not very encouraging. The next step is public consultations during this month or early December 2020. The Bill essentially has five features:
– It prohibits unfair discrimination
– It prohibits harassment
– It prohibits hate speech
– It establishes equality courts to hear breaches of the prohibitions
– It promotes equality.
I find that:
• it is clear from the analysis of the meaning of the objectionable utterances that different persons imputed different meanings to them and they meant different things to different persons;
• the main thrust of the President’s speech was the acknowledgement that “we have heard you”.
• the general theme of the President’s speech as indicated in the heading and by its content itself is victory at the November 25 polls if all SWAPO Party members come in full force to vote for the SWAPO Party candidates.
• the objectionable utterances read in context of the speech as a whole suggest shock at the lack of gratitude the President expects from white people; incite action from Party members which is to unite with the objective of winning the elections in the face of adversary. It is a call to mobilize against opposition.
• the objectionable utterances, viewed contextually were not likely to bring about hatred between different racial groups or between persons belonging to different groups.
• the objectionable utterances had just the opposite effect of uniting people in their condemnation of the President.
• the objectionable utterances may be offensive to some people and citizens were justified in exercising their right to speak and “criticize freely without fear which is an ingredient of democracy.”
• the President enjoys constitutional protection against criminal proceedings.
• it is unlikely that the objectionable utterance were capable of inducing white people to vote for the SWAPO Party only and for no other political party.
• it is common knowledge among Namibians that “one’s vote is one’s secret”.
• the objectionable utterance read in context of the speech as a whole do not constitute a violation of white peoples’ Article 17 constitutional rights.
• intimidation is a criminal offence which should be addressed by the police
• it is also misconduct under the Guidelines for Conduct of Political Activities by Political Parties in Respect of Election and should be reported to the Electoral Commission.
In light of the above concluding observations and findings, there is no need to make any recommendation.