Hate Crimes & Hate Speech Bill Fraught with Problems!

By Adv Nadene Badenhorst, Legal Counsel, FOR SA

The Department of Justice & Constitutional Development recently released the long-awaited and very controversial Prevention and Combating of Hate Crimes & Hate Speech Bill.
(The Bill is available for download at https://www.justice.gov.za/legislation/invitations/invites.htm).

In essence, the Bill creates two new criminal offences in South African law, namely “hate crimes” and “hate speech”. In terms of the Bill, the penalty for “hate speech” is a fine or 3 years’ jail time for a first offence, and 10 years for a repeated offence.

Without going into too much detail at this point (a further article dealing with the Bill in greater detail will be published shortly), the Bill is hugely problematic for various reasons.

The timeline is unfair and unreasonable

Firstly, the timeline that has been given to the public to comment on the Report is completely unfair and unreasonable. After government has taken a number of years to draft the Bill, the public has been given only 5 weeks (until 1 December 2016) to comment thereon.

The Department has advised that once comments have been received,
“focus-group meetings consisting of community based organisations in certain provinces (KZN, WC, Limpopo or as identified by the Ministry)”
(note, not public meetings and not in all provinces, despite the national and direct impact of this Bill on each and every citizen in SA!) will be held over the December / January period (note, when everyone is winding down or on Christmas holiday!).

Thereafter, in March 2017, the Bill will serve before Cabinet, and shortly thereafter be introduced to Parliament.

The Bill is over-broad and unconstitutional

While we appreciate the intention of the Bill (to protect vulnerable persons and groups in South Africa), our concern is that the definition of “hate speech” is over-broad and will have a major chilling effect on free speech and religious freedom.

As such, the Bill in its current form is unconstitutional, and possibly also unnecessary.

Why over-broad?
Because the definition of “hate speech” in the Bill goes much further than the definition and limits of “hate speech” in the Constitution, and criminalises just about any communication (in the broadest sense of the word) that any person or group may potentially not like, disagree with, or find offensive.

The definition contains a large subjective element (focusing on the feelings and perception of the listener or potential victim), and does not necessarily require an actual victim (which, again, is defined very broadly as including a person, a group of persons, or even a business or organisation).

Why a chilling effect?

Because when certain speech is criminalised, no one would dare open their mouths for fear that someone might take offence and report them to the authorities.

Debate on issues such as what is morally right and wrong, what is just and unjust, would be shut down—and the very freedoms we cherish as South Africans, namely free speech and freedom of religion, would be reined in.

As such, hate speech laws are actually very illiberal, but potentially also very dangerous.

In the words of former US federal judge Michael McConnell:
“Speech is constitutionally protected – not because we doubt the speech [may] inflict harm, but because we fear censorship more”.

Thus, while it is true that people may ‘misuse’ their right to free speech and even use it to offend, this is a risk that open and democratic societies must take.

After all, our Constitution guarantees the right to free speech, not the right not to be offended.

Impact on religious freedom

In particular, should the Bill be passed in its current form, believers (from across different faiths) will potentially be muzzled from preaching, teaching or speaking ‘controversial’ Scriptures and issues like abortion, creationism, euthanasia, prostitution, sexual immorality, etc.

This would be for fear that they will become targets of activists who may use the Bill to silence views they consider “extremist, fundamentalist, narrow-minded and bigoted”.

International example

This week, French politician Christine Boutin was convicted of “hate speech” by the Court of Appeals in Paris for having called homosexuality an “abomination” (as does the Bible in, for example, Leviticus 18:22).

Although Boutin explained that, as a Christian, she does not condemn any homosexual person but rather the act, the Court disagreed and ordered a fine of 5,000 euro, as well as 2,000 euro in damages to be paid to three gay associations (approximately R105,000 in total).

(See link to article here - https://www.lifesitenews.com/news/french-court-fines-politician-for-using-word-from-bible-to-describe-homosex)

Local example

In South Africa, pastors are already being charged with “hate speech” for believing, preaching and teaching the Bible.

For example, in the case of Creare Training Centre (a school that trains and equips students for Christian ministry), the then Deputy Minister of Justice laid a complaint against Creare with the South African Human Rights Commission (SAHRC), accusing Creare of promoting violence against homosexual people.

In this case, the SAHRC found that while Creare’s view of homosexuality was a Biblical one, it was unacceptable and a violation of human rights. The SAHRC directed Creare to undergo Sensitisation Training.

Existing laws already cover hate speech

In addition to violating constitutional rights, the “hate speech” provisions in the Bill are possibly unnecessary.

Why?

• The Constitution already prohibits “the advocacy of hatred”
• The Equality Act also addresses this
• Criminal law already includes “crimen injuria”

For example, Penny Sparrow was convicted under existing laws and ordered to pay a fine of R150,000 to the Oliver and Adelaide Tambo Trust.

It is thus clear that laws against “hate speech” already exist in South Africa, and there may be no need for additional legislation.

URGENT CALL TO ACTION

We appeal to all churches, religious institutions, and individuals to write to the Minister of Justice as a matter of urgency and object to the unfair process and timeline.

Letters of objection can be sent to:

NiMaweni@justice.gov.za
cc: hatecrimes@justice.gov.za

(To ensure another record of your correspondence, you may also copy FOR SA at legal@forsa.org.za)

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