The Namibian society has come a long way from our racially charged past.

Every Namibian now enjoys the equal protection of his or her constitutional rights regardless of age, sex, colour, race, tribe, disability or any other of the enumerated grounds for discrimination under Article 10 of the Constitution.

On the one hand, Namibia is at a crossroads with regards to one of our fundamental human rights — freedom of speech and expression. Freedom of speech and expression is enshrined in Article 21(1) (a) of the Constitution, and protects all persons’ right to free speech and expression.

On the other hand, Article 23(1) of the Constitution strictly prohibits racial discrimination and apartheid, many facets of which include hateful expression that was used towards black people or certain tribes prior to independence. This raises an interesting constitutional question which Namibian courts have not yet adequately dealt with — when it comes to hate speech, where do we draw the line?

Can the Constitution or legislature limit an individual’s right to freedom of speech and expression if that expression is racist, hateful or likely to incite violence?

Many countries have attempted to grapple with these questions, and have drawn different conclusions, based on their history and political context. In the United States, for example, the right to freedom of expression is an almost non-derogable right, and is prioritised over other interests such as dignity and privacy.

South Africa has recognised racist hate speech as a serious problem in the country, and has enacted legislation with severe penalties for anyone propagating hate speech, even going so far as imposing jail time on persons found guilty.

In Africa, there is no uniform African Charter provision regulating hate speech specifically, and each country must enact domestic laws to deal with these issues. Nonetheless, Article 9 of the charter guarantees every individual the right to receive information and express his or her own opinion within the law.

The African Commission has dealt with cases of this right being limited in the context of censorship and free media, but never has a case been heard that specifically discussed hate speech in a judicial context.

Many violations of human dignity during apartheid in Namibia have been prohibited through legislation and policy. However, several reports have been done that show there has still not been a total break with the racialised social order. This is evidenced by the inconsistent distribution of land and resources in Namibia, and also in the social sphere, where racial and tribal tensions continue to result in the unequal treatment of individuals.

Racialised structures and racial language have also survived apartheid, in spite of a modern, liberal Constitution and a profound will to break with the past. The use of words making racial distinctions between people are still strongly embedded within people’s minds, and forms of racism and hatred against a particular group continue to manifest themselves through expression, either in public or privately.

Racist hate speech is currently regulated in Namibia under the Racial Discrimination Prohibition Act of 1991 to protect the gains of the long struggle against colonisation, racism, apartheid and the right to non-discrimination. The act was amended in 1998 after the State v Smith and Others case in 1996 in order to loosen the restrictions on racist language if it is a subject of public interest, debate, or if the information is factually true.

Up until today, no prosecution has ever been successful under the Racial Discrimination Prohibition Act, and only a few cases have ever been brought to court. This has led many to question the efficacy of the act itself, and debate the possibility of enacting a stronger, more robust act prohibiting hate speech, as South Africa has done with its 2016 prevention and combating of hate crimes and hate speech bill.

Others criticise the court itself for not adequately interpreting the act so as to clarify its scope and application in a legal context in Namibia.

In addition to racist hate speech occurring between white and black individuals as part of the post-apartheid legacy in Namibia, among tribes, there equally occurs everything from racist hate speech to what we perceive as “harmless” stereotyping. There is a point, however, when these “harmless” stereotypes become very harmful and impact on an individual’s access to employment, land, shelter and equal treatment.

In the tribal context, stereotypes go beyond mere observations and can hold claims to truth for the person who believes them, resulting in serious prejudice. Stereotyping is a form of racist tribalism and can lead to discrimination, and therefore violates the constitutional provisions protecting human equality and dignity.

If we are to move beyond a society where people are discriminated against based on their race, we must also concern ourselves with discrimination based on tribe. What tribe an individual belongs to is no more important than their skin colour in relation to questions of equal treatment before the law.

Any legislation concerning racial discrimination should make no mistake to include tribalism as a form of discrimination, a protection which exists in the Namibian Constitution, but is not expressly provided for in the Racial Discrimination Prohibition Act.

Namibia, therefore, finds itself in a very unique position to determine which direction to take on freedom of expression, and what hate speech regulation will look like. We have laws and we have constitutional provisions, but they have never been seriously articulated in the courts to set clear precedents.

From both a social and legal standpoint, there is a fine balance that must be struck between freedom of expression and hate speech to effectuate real change in a country still struggling with racial and tribal tensions. The future of racism in our country is not only built through bills and statutes, but is built with each of us every day, and the manner in which we interact with one another as human beings.

This balance must not only be struck by lawmakers, therefore, but by all of us as well. If each time we make comments based on race or tribe we make the time to ask ourselves “where should we draw the line?”, we will get one step closer to finding that balance for ourselves as Namibians.

* Yvonne Dausab is the chairperson of the Law Reform and Development Commission and Eleanor Dennis is a second-year law student at Mcgill University in Canada, and works as an intern at the LRDC.