The Hate Speech Act is a Big Blow to Democracy and Religious Freedom

Monday, 6 May 2024 was a dark day for democracy and religious freedom in South Africa. President Cyril Ramaphosa, on the eve of the General Election, signed into law the Prevention and Combatting of Hate Crimes and Hate Speech Act. While FOR SA has no problem with the “hate crimes” elements, this new law criminalises “hate speech”, with a five-year jail sentence upon conviction.

We – and many others – objected to this law because the way it is drafted cuts deeply into the constitutional cornerstone right of freedom of expression. Worse, the Hate Speech Act goes much further by criminalising speech that is rightfully constitutionally protected – i.e. – it goes way beyond only criminalising real hate speech.

FOR SA does not condone hate speech. We recognise and fully respect the inherent human dignity and equality of all people. However, this Hate Speech Act has gone far wider than either the Constitution or international law allows. Widening the definition of hate speech to essentially mean “speech that I hate” now opens the door to frivolous and vexatious criminal prosecution.

One of the central flaws of the Hate Speech Act is its failure to define the central element of the new crime it creates, namely “hate”. Other key definitions are equally broad, vague, and even subjective. This makes it possible to be arrested and prosecuted for any “hateful” expression that may cause someone “substantial emotional harm” if they belong to one of the eighteen protected groups.

A critical element of any law is to provide legal certainty so that you know if and when you are breaking it. The vagueness and subjectivity of the definitions in this Act mean that a conviction or an acquittal may depend heavily on the views and perspectives of an individual judge, rather than the law being applied equally and fairly to all.

A further major concern is that the Government failed to engage in a meaningful way with the input received from the public. Over 200,000 written submissions were made during three public participation processes, primarily expressing concern about the impact of this law on bona fide religious speech. FOR SA particularly pushed for a robust clause to be inserted to protect good faith religious expression. However, this was disregarded and the so-called religious exclusion clause in the Act offers little to no protection.

The Government touted this law as necessary to punish racist expressions, but South Africa already has the Equality Act, which provides substantial fines and other non-custodial sanctions for hate speech. Bizarrely – and because of the wide definitions in the Hate Speech Act – it will be easier to be prosecuted and jailed for up to five years for the new crime of hate speech than to be sued successfully under the Equality Act.

Arguably, there is no need for a new hate speech law. South Africa already has and uses the common law crime of crimen injuria to punish racist speech with imprisonment. It was used effectively to criminally sanction the racist speech of Penny Sparrow and Vicky Momberg.

FOR SA further believes that the Hate Speech Act is unlawful because, in recognition of the critical importance of free speech as a central pillar of democracy, international law requires a strict test to ensure that the criminalisation of speech is a last resort measure reserved for exceptional circumstances. It also requires that hate speech is very narrowly defined. in passing it, the Government completely disregard edits international treaty obligations to protect freedom of expression and freedom of religion.

FOR SA – and no doubt other civil society groups who strongly opposed this draconian law – will now consider taking appropriate legal action to challenge its validity. We believe the Act is unconstitutional, and the Government failed to ensure a meaningful public participation process. While this may be a costly and slow process, we believe that it is a battle well worth fighting to uphold and protect faith and freedom!

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