New hate speech laws face pushback in South Africa
The new Prevention and Combating of Hate Crimes and Hate Speech Bill making its way through Parliament is facing a myriad of opposing views.
Political parties’ perspectives on the bill aiming to make hate speech a crime oppose each other, with some arguing it leaves too much room for interpretation while others believe it is sufficient.
In 2018, the bill was introduced to the National Assembly but has been delayed as a result of two Constitutional Court judgments.
The proposed legislation aims to tackle the growing occurrence of prejudiced incidents, encompassing hate crimes and hate speech, as highlighted by the government. It also makes specific mention of social media and online communications in relation to hate speech.
If it becomes law, hate speech and hate crimes would become offences and with measures put in place to prevent and combat measures to address such offences.
During discussions on the bill, George Michalakis, a Democratic Alliance parliamentary member, said that his big objection to the bill is that some of the concepts, especially harm and hate, are so broadly defined it leaves it open for interpretation by the courts or are not defined at all.
In response, the deputy minister of justice and correctional services, John Jefferey, said that the bill is clear on hate and what constitutes hate speech and that those guilty of serious offences will be punished.
As it stands under the new laws, hate speech will be defined as a clear intention to be harmful or incite harm, or promote or propagate hatred based on these characteristics:
- 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.
This is not the first instance of contention over the bill. In April, during a parliamentary committee meeting on the bill, serious concerns were raised about the implications of the bill for freedom of speech.
According to the Parliamentary Monitoring Group (PMG), members expressed concerns over the lack of precise definitions for hate speech.
The PMG also said there were queries about the potential implications for revolutionary songs and expressions found in ancient scriptures.
Furthermore, questions were raised about the classification of hate speech as a distinct crime. Additionally, concerns were voiced regarding the severity of the sentences outlined in the Bill for both hate speech and hate crime offences.
This is how a hate crime and hate speech are defined in terms of the bill:
Hate crime
A hate crime is an offence recognised under any law – excluding the common law offence of crimen injuria – committed by a person who is motivated by their prejudice or intolerance towards the victim, the victim’s family member or the victim’s association with or support for a group of persons who share one or more of the aforementioned characteristics.
- The crime is based on one or more of the actual or perceived characteristics.
- Any person who commits this offence is guilty of a hate crime and liable on conviction to a fine or imprisonment for a period not exceeding eight years or to both a fine and imprisonment.
- The criminal record of a person who has been convicted must explicitly record the underlying offence as a hate crime.
- Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions.
Hate speech
The crime of hate speech is any person who intentionally publishes, propagates, advocates, makes available or communicates anything to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm; and promote or propagate hatred, based on one or more of the grounds.
This crime is notable in that it includes any person who intentionally distributes hate speech through an electronic communications system which is accessible by any member of the public; or accessible by, or directed at, a specific person who can be considered to be a victim of hate speech.
The bill states that these laws do not apply if the communication is done “in good faith in the course of engagement”.
This relates to the following:
- Artistic creativity, performance or expression;
- Academic or scientific inquiry;
- Fair and accurate reporting in the public interest or the publication of any information, commentary, advertisement or notice;
- Interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings, that does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds.
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