Proposed hate speech laws want to make basic insults punishable by 3 years in jail

Arts and culture minister Nathi Mthethwa has confirmed that the Prevention and Combating of Hate Crimes and Hate Speech Bill will soon be tabled.

A number of amendments have been made to the bill, following recent instances of hate speech which have cropped up via social media, reports IOL. Mthethwa said that the bill would head to parliament before the end of the current administration’s term.

One of the biggest controversies surrounding the bill is the large number of characteristics which are now covered under ‘hate speech’, leading to fears that even petty insults could lead to trouble with the law.

“The Constitution allows for the protection of only four specified characteristics – race, ethnicity, religion, gender – but the bill protects seventeen characteristics, including ‘culture’, ‘belief’, ‘occupation’, and ‘gender identity’,” the the Free Market Foundation (FMF) said in an analysis of an earlier version of the bill in 2017.

These characteristics are:

• Race;
• Gender;
• Sex, which includes intersex;
• Ethnic or social origin;
• Colour;
• Sexual orientation;
• Religion;
• Belief;
• Culture;
• Language;
• Birth;
• Disability;
• HIV status;
• Nationality;
• Gender identity;
• Albinism; or
• Occupation or trade

As a result, saying something like ‘All politicians are thieving liars‘ or ‘All lawyers are blood-sucking parasites’ could now be considered hate speech in terms of the new bill, the foundation said.

Even with the recent amendments, the core problems of the bill remain the same, according to Martin van Staden, legal researcher at the FMF.

Van Staden said that the bill still has “irredeemable qualities” because of its broad nature, with the legislation stating that you commit the crime of hate speech by simply insulting someone with the intention to bring them into contempt, or by ridiculing them based on anything from belief or occupation, to the more contentious elements like race, gender, religion, etc.

“This could then condemn you to prison for up to three years for a first offence, and for ten years if you do it again,” he said.

“Not only does the text of the bill not make sense, but in fact it defeats itself under the guise of protecting the element of ‘belief’.

“If you say, for instance, ‘Racists are scum and should be ostracised‘, you are committing hate speech according to the bill, as racism is a belief and belief is protected,” he said.

Other possible scenarios that could emerge due to the arbitrariness of the bill, include:

• If a teacher accuses a pupil of being a “bad learner” who should study harder, they are committing hate speech.
• If a feminist says Afrikaner culture is patriarchal, they are committing hate speech.
• If a frustrated niece says her uncle is an annoying old man, she is committing hate speech.
• If a social activist says capitalists are greedy, they are committing hate speech.

The one silver lining is that the bill is unlikely to pass through as law in its current form because of these flaws, Van Staden said.

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