If the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill becomes law.

In October 2016, the South African Cabinet decided to formally publish the new bill for public comment after South Africa was rocked by a number of shocking online racist comments.

There are already similar laws in countries like Kenya, Canada and Australia.

A summary of what the bill proposes includes:

  • The bill will not just be about race but will include intolerance and/or bias based on gender, sex (including intersex), ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism and occupation or trade;
  • It will enable courts to prosecute perpetrators on both hate speech and hate crime charges;
  • The bill takes the concept of hate speech one-step further by also including “contempt or ridicule of any person or group of people”;
  • Comments made online or via electronic platforms will also now be up for criminal prosecution;
  • It proposes that a first offence should be treated with a fine or a minimum prison sentence of 3 years, or both;
  • Should the person repeat offend, they will face a fine and imprisonment of at least 10 years.

Simply put, insulting a relative or the waiter at a restaurant about his or her lack of expertise, could be considered hate speech.

What is the relationship between hate speech and the Constitution?

The right to freedom of expression is enshrined in section 16 of the Constitution and it is the only right which contains an internal limitation. This means that the text of the right itself excludes certain kinds of speech from constitutional protection. In the Constitution, there are three categories of speech that are not protected; propaganda for war, incitement to imminent violence and what is called hate speech.

However, it would appear that the intention of this bill is to go much broader and deeper when it comes to hate crimes.

As Martin Van Staden, a legal researcher at the Free Market Foundation and academic programmes director of Students for Liberty in Southern Africa points out:

“If you call your teenage son a “bad learner” at school who should study harder, you are committing hate speech. If you say the British are pompous or Afrikaners are patriarchal, you are committing hate speech. If you say your uncle is an annoying old man, you are committing hate speech. If you say capitalists are greedy, you are committing hate speech. The list goes on. This Bill effectively abolishes freedom of expression, entirely, in SA

Furthermore, the Bill defeats itself in the guise of protecting “belief”, for, if you say “Racists are scum and should be ostracised!”, you are, yet again, committing hate speech, because racism is a belief and belief is protected. The NPA (the policing authority) will then be placed in the awkward position of having to institute charges against an anti-racism activist because the country’s supposed anti-racism law obliges it to.” (Explanation of NPA included by me)

The ludicrousness of the proposed legislation is best depicted in this cartoon. The title in English: “The Hate Speech Act summed up.”

Jerm Hate Speech

Civil society has unanimously come out against the Bill, including a large group of comedians and satirists who see their livelihood at risk.

There is also strong opinion amongst some legal commentators that the proposed bill is reminiscent of the Apartheid’s Suppression of Communism Act under which, any speech remotely critical of the regime of the day could be construed as “communist propaganda” and lead to imprisonment.

At the announcement of the release of the bill for public comment, the then Minister of Justice justified the new proposed legislation, saying:

The Bill has been drafted after a thorough study of other similar pieces of legislation internationally, such as those in Kenya, Canada and Australia. Developing specific legislation on hate crimes will have a number of advantages. It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and provide a means to monitor efforts and trends in addressing hate crimes,”

The Minister went on to state:

“The recent racist utterances and many other incidents of vicious crimes perpetrated under the influence of racial hate, despite our efforts over the past two decades to build our new nation on these values, has necessitated further measures to uproot this scourge which is reminiscent of our unenviable apartheid past”

What is of interest is that it would appear that racism is not as prevalent as the Government and some commentators would believe.

“Several consecutive surveys, undertaken by the impeccable South African Institute of Race Relations, have shown racism to be a significant problem for only about 3% of the respondents, blacks included. Far more significant, at more than 40%, is the problem of unemployment. Personal experience and anecdotal reports tend to support these statistics.”Rex van Schalkwyk, a former judge of the Supreme Court of SA and the chairman of the FMF’s Rule of Law Board of Advisers.

Furthermore, in an article titled Hate speech and legal overreach in South Africa, by Jacques Rousseau, the author points out that:

“Interestingly, the Minister cites the example of Canada as one of the jurisdictions whose legislation on hate crimes has informed this Bill. Perhaps the Minister isn’t aware – or I’m misreading something – but the electronic communications sections of our proposed Bill look rather similar to Section 13 of the Canadian Human Rights Act, which was repealed in 2013 after being found to be unconstitutional.”

While we may be hopeful and confident that the Bill will not survive our courts and the inevitable test of constitutionality, and assuming that the Government’s legal team is not stupid in that they also recognise the inevitability of the outcome, why is the bill being touted at all?

Maybe the Government is hoping for a watered down version which may still allow them to muzzle negative public opinion against the ruling party and the President in particular?

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