The Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016 (the “2016 Hate Speech Bill”) was published in late 2016 and open for public comment until 31 January 2017. Martin wrote the Free Market Foundation’s submission on the Hate Speech Bill (available here) and has done several radio and television interviews about its dangerous implications.
Martin wrote his first article warning against hate speech legislation in January 2016, more than 10 months before the Bill was publicly available, and has written dozens of articles since.
In April 2018, government published the Prevention and Combating of Hate Crimes and Hate Speech Bill, 2018 (the “2018 Hate Speech Bill”) which took many of the FMF’s concerns and suggestions into account. The 2018 Hate Speech Bill accords more closely with the Constitution, with minor imperfections that still need to be addressed.
Executive Summary of the FMF 2016 Hate Speech Bill Submission
The proposed Hate Speech Bill regulates hate crimes as well as hate speech, however, the FMF submission is mostly concerned with the regulation of hate speech.
The Constitution guarantees freedom of expression to all South Africans, but does not protect speech which advocates hatred based on the four specified grounds of race, ethnicity, gender, or religion, and which constitutes incitement to cause harm.
The proposed Bill intends to regulate these expressions, in line with the International Convention on the Elimination of All Forms of Discrimination. The Department of Justice further claims that the Bill was inspired by anti-hate speech laws in Kenya, Australia, and Canada. The proposed crime of hate speech carries a sentence of up to three years in prison for a first offence, and up to ten years for a subsequent offence.
The FMF has identified several problems with the Bill and proposed amendments to rectify them.
Firstly, the Bill allows for the conviction on a charge of hate crime although the accused person had already been acquitted of the underlying offence with which the hate crime was connected. For example, an acquittal on a charge of assault would constitute no defence to a subsequent charge for the hate crime which is alleged to have given rise to the assault. This does not make logical sense, and will certainly lead to injustice.
Secondly, the Bill violates the principle of double jeopardy found in the Constitution, in that, while the Bill purports the create two separate crimes of hate crime and hate speech, these overlap to such a significant extent, that a charge for hate speech must, by the wording in the Bill, be accompanied by another charge of hate crime. The same may conceivably be true in reverse.
Thirdly, the Bill’s grounds for hate speech are far too wide. The proposed law will criminalise the act of ‘insulting’ another ‘with the intent’ to ridicule or ‘bring into contempt’ the other. Insult and ridicule is part of normal human intercourse and is, in fact, an essential ingredient of a free and democratic society. No law, no matter how well intentioned, can, or should, interfere with this freedom.
Fourthly, the Bill’s protection of certain characteristics is extremely dangerous, as well as unconstitutional. This is especially problematic within the context of the previous point. 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.’ Protecting characteristics such as ‘belief’ and ‘occupation’ from ‘insults’ will have perverted effects, whereby South Africans will be jailed for having opinions which are allowable in every other democratic society in the world. Something as harmless as saying “All politicians are thieving liars!” or “All lawyers are blood-sucking parasites!” is hate speech in terms of this Bill.
Fifthly, the Bill provides for no exemptions or defences. The Bill’s apparent purpose, which is to curb hate speech likely to lead to violence, is justified. However, it is essential that a latitude be allowed in certain specified cases, which are internationally recognised.
Furthermore, the Bill is, read as a whole, much harsher than any of the legislation in Kenya, Australia, and Canada, upon which the Bill is apparently based. The Bill also falls foul of international free speech obligations, and goes far wider than any international anti-hate speech instrument, including the International Convention on the Elimination of All Forms of Discrimination.
Hate speech, by its nature, is speech which is likely to lead to violence, or which causes the aggrieved party intense psychological or emotional harm. However, the Bill is far too wide, and has the effect of protecting mere offence or insult. Much vexatious litigation will surely follow from the Bill, and it is open to abuse.
Existing South African law regulates hate speech adequately, and should be preferred to the introduction of a new law. The Equality Act prohibits hate speech, and the Films and Publications Act empowers the Films and Publications Board to refuse classification to publications which contain hate speech. Most notably, the doctrine of crimen injuria has been used in our law to prosecute cases of hate speech, most notably the recent case of Penny Sparrow. Crimen injuria is superior to the proposed Bill because it does not merely require someone’s dignity to have been violated, but also requires that the reasonable person, in the same circumstances, would also have felt degraded. This means that the courts will not allow petty disputes where one person merely offended another, for instance, with a joke, to end up with someone spending three years in prison.
The Hate Speech Bill, if passed unamended (especially without the inclusion of generous defences), will have a profound effect on our constitutional democracy. South Africa will become one of the few countries in the world where freedom of expression is regulated to this draconian extent. Much of the Bill is, in fact, unconstitutional and will, if passed unamended, lead inevitably to successful constitutional challenge.
Why “Hate Speech” Per Se, As Envisioned in the Bill, Should Not be Criminalised
The nature of freedom of expression is that people should be allowed to say unpopular, stupid, or even offensive things. If this were not so, then this guarantee need not have been in the Constitution, as we would be allowed to say only what all other people (and especially the government) agreed with.
The ANC chief whip’s office bases its reasoning on “dehumanisation” and “deprivation of dignity”, but this is a slippery slope. Racism is certainly dehumanising and deprives us of our dignity, but so do a host of other daily occurrences. Would the ANC also consider legislation that criminalises extramarital affairs? I personally feel dehumanised when the professoriate requires me to write two examinations on one day. Would this, too, be criminalised due to the inhumane strain placed on students?
This is not to make light of the stupid and racist nature of Sparrow’s comments. She must feel the unanimous condemnation of the South African people and, as the Institute of Race Relations’ Sara Gon commented, like the rest of us must live with the (private, civil) consequences of what we say online. But this does not call for the force and violent coercion of the state to play a role.
We cannot chip away at freedom of expression even if we all agree that what was said was wrong. John Stuart Mill recognised this principle in his seminal essay, On Liberty, writing that even if everyone except one individual agreed about something, that one individual still has the right to air his contrarian view.
But even Sparrow’s ignorant and vile drivel must be allowed, whether or not it amounts to the same level of intellectual engagement as Hart’s. Freedom affords her this evil pleasure. Saying stupid, extremely offensive things should not be a crime, unless there is incitement to cause physical harm to someone’s person or property. This is an unpopular opinion, but we must remember that censorship of speech is a slippery slope with no boundaries.
If we allow the government to censor and criminalise anything that may be offensive in any given circumstance, we will soon not be allowed to utter anything at all. If we continue down this path of reckless paternal statism to regulate our expression, the apartheid regime, long dead, will end up the winner in the war of ideas.
Martin van Staden, Business Day, 12 January 2016