* Following the publishing of this article, Parliament's first house, the National Assembly, voted on the Bill during its plenary on 14 March 2023. The majority of elected members in Parliament voted to adopt it. The Bill will now go to Parliament's second house, the National Council of Provinces.
The Apartheid State was notorious for its heavy censorship of what could be said – by journalists, religious leaders and individuals. People were sent to jail simply for saying or merely displaying things. South Africans only secured their freedom of expression after the dawn of our new democratic era, when this fundamental freedom was finally entrenched as a right in our interim Constitution in 1993. This momentous shift from an autocratic to a human rights-based society took place less than 30 years ago.
Most people would agree that free speech should not be an absolute right – think of the abhorrent propaganda that led to the Rwandan genocide or World War II. This is why the South African Constitution specifically excludes (i) propaganda for war, (ii) incitement of imminent violence and (iii) the advocacy of hatred (based on race, ethnicity, gender or religion) that constitutes incitement to cause harm (i.e. “hate speech”) from protection, and allows the State to regulate this “unprotected speech” as it sees fit.
National Assembly’s Justice Committee approves Bill:
On 2 March 2023, the Prevention and Combating of Hate Crimes and Hate Speech Bill (commonly known as the Hate Speech Bill) was approved by the National Assembly’s Justice Committee. Only the DA and ACDP members on the Committee voted against the Bill. (The Bill will now go for voting to the full National Assembly.) The Bill is notorious, not only for its wide definition of “hate speech” (some would say it even fails to clearly define it at all) but also for proposing an eight-year maximum jail sentence for those found guilty of “hate speech”.
Naturally, the devil is in the details: if hate speech will be a crime that the South African government wants to send you to jail for up to eight years, what exactly is hate speech? After all, when posting something on Facebook, you might want to know whether you risk facing jail time.
The Bill’s definition of “hate speech”:
The Bill defines hate speech (in simple terms) as an expression that (1) is harmful or incites harm, and (2) promotes or propagates hatred against (3) a group of people specifically listed in the Bill:
“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—
(i) be harmful or to incite harm; and
(ii) promote or propagate hatred,
based on one or more of the grounds, is guilty of the offence of hate speech.”
The Bill also makes it a crime to pass on – e.g. share on Facebook – a comment it sees as hate speech:
“Any person who intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech as contemplated in paragraph (a), through an electronic communications system which is—
(i) accessible by any member of the public; or
(ii) accessible by, or directed at, a specific person who can be considered to be a victim of hate speech,
is guilty of an offence.”
Element # 1: Harm – the pawpaw that hits the fan:
So, given that the Bill also proposes penalties such as a fine and/or up to eight years imprisonment, we can see how each of these concepts (harm, hatred and which specific groups) are defined is crucial. And here’s the rub – the Bill defines harm as:
“substantial emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual or groups”
Plainly, the Bill does not only encompass standard types of harm such as psychological or physical (which are relatively simple to objectively identify and quantify), but also subjective emotional harm (i.e. hurt feelings, which necessarily entails a degree of subjectivity) and even more nebulous concepts such as social harm, which it defines as:
“detriment that undermines the social cohesion amongst the people of South Africa”
While it is true that emotional harm is accepted as a civil hate speech matter under the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“the Equality Act”) – with sanctions such as a fine or a public apology – with the Hate Speech Bill, we are talking about jail time for hurt feelings. Is this appropriate in a constitutional democracy that requires freedom of speech for its very existence and health? Surely not!
What is more, the degree of harm required by the Bill is not even gross emotional harm or social harm. Alarmingly, substantial hurt feelings might be sufficient for you to learn the intricacies of the South African prison system.
Lastly, it is important to point out, that the Bill does not require an express direct causal link between your expression and any actual harm suffered. All that is required is that a reasonable person who is aware of the context of the facts and circumstances surrounding the expression and who sees (or reads or hears) the expression understands it as being potentially harmful or inciting harm. (Now, it is true that the Constitutional Court in Qwelane (at para 111) held that for purposes of the Equality Act (a civil remedy that reads similar to the Bill and also fails to expressly require such a link), it is unnecessary to prove a causal link between the statement and any actual harm or incitement of harm. However, in the creation of a crime, FOR SA’s position has consistently been that the threshold needs to be higher. We should not send people to jail for (e.g.) substantial social harm without requiring the State to prove any actual harm resulted in the real world.)
It is truly extraordinary that, in an open and democratic society that suffered through the brutality of Apartheid censorship and fought hard for freedom of expression, an eight-year jail sentence can be imposed for speech that possibly causes substantially hurt feelings or nebulous social harm. Yet, this is exactly what our Parliament, our elected representatives, is approving.
Element # 2: Hatred – the undefined crucial element:
Inexplicably, hatred, the second element for the crime of hate speech in the Hate Crimes and Hate Speech Bill remains undefined. This is despite a precedent in Canadian case law, relied upon by our Constitutional Court, that defined hatred as “strong and deep-felt emotions of detestation, calumny and vilification”, “the most severe and deeply felt form of opprobrium… an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.” And that “to promote hatred is to instil detestation, enmity, ill-will and malevolence in another.”
Our own Constitutional Court has defined hate speech as “extreme detestation and vilification which risks provoking discriminatory activities against that group”.
Despite the case law readily available in the Qwelane judgment (South Africa’s preeminent piece of case law on hate speech albeit from a civil, not criminal, perspective), hatred – the quintessential element of the Hate Crimes and Hate Speech Bill – remains undefined in the Bill.
Practically this means that Parliament has decided to leave defining this term to the courts, particularly the Magistrate’s Courts (where such cases are and will typically be heard). Leaving it up to a junior court to define the most essential element of a statutory crime is highly problematic – both from the perspective of Parliament abdicating its legislative responsibility to the courts and from a Rule of Law perspective (which not only requires that Parliament must act rationally in devising a law for the achievement of a legitimate purpose, but that the law should be clear so that Jo Public knows when he is breaking it). Arguably, in not defining the quintessential element of a statutory crime, but leaving it up for the courts to decide, Parliament is not only forcing the courts to step into its lane, but also acting irrationally.
Element # 3: Specific groups – too hot to handle:
The Bill’s specific groups listed include a wide range of grounds, currently hotly debated in the media, including gender identity:
(b) ethnic or social origin;
(d) HIV or AIDS status;
(e) nationality, migrant or refugee status or asylum seekers;
(i) sexual orientation, gender identity or expression or sex characteristics; or
(j) skin colour;”
One might wonder how many of 2022’s opinions dealing with the unisex bathroom saga in schools would have landed their authors in jail if this Bill was already law. Importantly, many of the grounds (e.g.) gender, sex etc. have fluid meanings that no longer represent what they did even a decade ago. Each of these grounds should be defined for clarity’s sake – otherwise who is to say what will fall within their ambit even ten years from now?
The Constitutional Court said in its Qwelane judgment (at para 81) that “the expression of unpopular or even offensive beliefs does not constitute hate speech”. However, the current Bill before Parliament does not protect South Africans’ right to publicly express unpopular opinions, thoughts, and even offensive beliefs. This is due to its simultaneous wide definitions of “hate speech”, “harm” and “victim” (which includes a juristic person, even though a business has no inherent dignity), and the narrow grounds it provides for exemption.
Smoke and mirrors – Exemption clause no help at all:
But surely the Bill includes exemptions for artists, journalists, religious beliefs or academics? Surely, we are not proposing that a journalist who writes an article that possibly causes substantially hurt feelings, or an artist who creates something that possibly causes substantial social harm (whatever that is) go to jail?
At first glance, yes, the Bill does include exemptions for these groups of people:
“The provisions of [the crime of hate speech] do not apply in respect of anything done as contemplated in [the section criminalising hate speech] if it is done in good faith in the course of engagement in any bona fide—
(a) artistic creativity, performance or expression;
(b) academic or scientific inquiry;
(c) fair and accurate reporting or commentary in the public interest or the publication of any information, commentary, advertisement or notice; or
(d) 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”.
Unfortunately, the exemption clauses are clearly confusing. This is extremely problematic, but perhaps to be expected when no attempt has even been made to define the quintessential element of hatred.
Essentially they read as follows: if a journalist, academic, artist or religious person does anything as contemplated in the section criminalising hate speech – (e.g.) a journalist who reports something in a way that reasonable Joe Public, who is aware of the context surrounding the report, understands as being potentially inciting (e.g.) substantial social harm – they are not guilty of the crime of hate speech as long as it was done in good faith. This is, of course, unless what they say advocates hatred (which according to our Constitutional Court means the same as promoting or propagating hatred) that constitutes incitement to cause harm against a group of people specifically listed in the Bill.
Sound familiar? That’s because it is straight out of the Bill’s definition of what hate speech is:
Hate speech elementsExemption clause exclusionsElement #2: Promote or propagate hatred
Element #1: Harmful or incite harmthat constitutes incitement to cause harmElement #3: Specific groupsbased on one or more of the grounds
Arguably, the only difference between the two is that the exemption requires a slightly lower threshold because “harmful” falls away and only “incitement” is necessary. But what does inciting for (e.g.) substantial emotional harm mean? What about inciting something that substantially undermines South Africa’s social cohesion (i.e. social harm)? You would be forgiven for feeling left dazed and confused…
Essentially all the (confusing) exemption clause seems to achieve is to say that you are not guilty of hate speech unless what you say is hate speech. Not much of an exemption!
If you wish to share your thoughts on a controversial topic with the world on your podcast or YouTube channel – not as a journalist, academic or artist or as part of a religious belief – well then, too bad, you do not even qualify for the very limited protection of this circular exemption.
Criminalisation despite the Rabat Plan:
The Bill chooses to criminalise speech, despite South Africa’s various international law obligations under numerous instruments which emphasise the protection of the fundamental rights to religious freedom and freedom of expression in the public realm (for example, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (“ICCPR”), the African Charter on Human and People’s Rights, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”), and the Declaration adopted at the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban).
Government has argued that the Bill is necessary in terms of ICERD. However, ICERD (which South Africa ratified in 1998 already) only talks about racist speech (for which the existing law of crimen iniuria has been effectively used, for example, in the instances of Qwelane, Penny Sparrow, Vicky Momberg, Velaphi Khumalo, Bongani Masuku etc ). In addition, ICERD requires that States guarantee the right of everyone to equality before the law, notably also in the enjoyment of the right to freedom of opinion and expression. If we have been obligated to criminalise the Bill’s version of “hate speech” since 1998, why are we only doing it now?
In fact, it is instructive that the UN supports more speech – not less – as the key means to address hate speech. The Bill also fails to meet the threshold test laid out in UN Rabat Plan of Action, which needs to be fulfilled in order for a statement to amount to a criminal offence, causing South Africa to violate article 20 of the ICCPR (which requires a high threshold for restricting freedom of expression).
Conclusion – return of the Censorship State:
As shown above, the Bill’s key definitions are fraught with problems – or simply missing them altogether. Its so-called exemption clauses (which purport to protect freedom of expression) are for all intents and purposes a farce. The Bill is also unnecessary, given that both the crime of crimen iniuria and the Equality Act’s civil sanctions for hate speech have already been effectively used to address instances of real hate speech. In addition, this Bill goes against our international law obligations and our own recent history.
This entire Bill again ushers in the potential for a Censorship State who will decide what is OK or not OK to say and that sends people to jail who infringe these standards. In a country where we fought so hard for freedom, it is hard to believe that our Parliament is even considering taking these foundational freedoms away from us. This will not resolve the remaining painful vestiges of real hatred, nor will it reconcile and heal our nation. Rather, it is likely to have a chilling effect on our democracy and sow further seeds of division and distrust between our people.
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