Our democracy, founded upon the supremacy of the Constitution and the Rule of Law, provides for various mechanisms and means – including the National Assembly of which Mr Malema is a member – to address differences and concerns. The Constitution also protects the right to freedom of expression, as well as the right, peacefully and unarmed, to present petitions, to picket, demonstrate and assemble in order to bring attention to his cause.
However, despite his reasons, motivation or proposition, these rights do not extend to the incitement of violence or destruction of property. They do not extend to illegal activities or advocacy of hatred that is based, among others, on race or ethnicity, and that is aimed at causing harm.
The Constitution calls on everyone in South Africa to recognise the injustices of the past, to heal the divisions of the past and to build a united and democratic South Africa. As such, we have to engage in dialogue about the wrongs of our past, and a common future in which all South Africans can share. We have to deal with our differences of opinion, perceptions and ignorance, but we have to do so within the framework of our Constitution and the law. Calling for any other kind of protest or action aimed at violating our constitutional values and the law, is reckless, irresponsible and quite frankly illegal.
By Adv Johan Kruger, Director: Centre for Constitutional Rights