Summary of FOR SA’s submission to Parliament on the Hate Speech Bill

This article is a summary of FOR SA’s recent submission to Parliament’s second house, the National Council of Provinces (“NCOP”) on the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9B–2018] (the “Bill”).

‍FORSA’s submission focused on our concerns about the hate speech component in the Hate Speech Bill, which aims to criminalise expressions that the Bill sees as “hate speech”. Given the nature of this article, only the most important points raised in FOR SA’s submission will be covered. To read all the legal arguments and problems regarding the Hate Speech Bill that FOR SA made and identified, please read the full submission made to Parliament.

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Problem 1 – The Bill is unnecessary

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In South Africa, there are existing laws that effectively prohibit hate speech. An additional law, such as the Hate Speech Bill, is therefore unnecessary. What is needed is for existing laws to be properly implemented.
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These existing laws, include, but are not limited to:

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In criminal law:

The common law crime of crimen injuria has been successfully used to convict racist speech –e.g. Penny Sparrow and Vicky Momberg.  Both were found guilty of crimen injuria for making racist statements.  In the case of Sparrow, she was fined R5 000 and sentenced to two years’ imprisonment, suspended for five years. (In addition, she was found to have committed “hate speech” under PEPUDA (see below) and ordered to pay R150 000,00in compensation to the Oliver and Adelaide Tambo Trust.)  In the case of Momberg, she was sentenced to three years’ imprisonment, of which one year was suspended.

There is also the Riotous Assemblies Act, 1956 which criminalises inciting people to commit an offence. In terms of this law, if you incite anyone to commit a crime, you will face the same punishment as if you actually committed the crime yourself.

The Intimidation Act, 1982 criminalises intimidating the public, through fear, to do or not do something.  If you are found guilty of this crime, you can be sent to jail for up to 25 years.

Apart from the options available within criminal law (i.e. where if you are guilty, you will have a criminal record and may be imprisoned), remedies and sanctions are also available under the civil.

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In civil law:

The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“PEPUDA”) prohibits hate speech and allows a court to e.g. order an apology or the payment of damages. This law has already been successfully used in the cases of Qwelane (which had to do with sexual orientation), Velaphi Khumalo (race), Sparrow (race) and Masuku (antisemitism).

It is therefore evident that we do not need a new law to send racists (or anyone else who commits truly dangerous speech) to jail, nor do we need one to make them pay fines as punishment for saying horrendous things. We already have seen both the criminal law and the civil law used simultaneously to sanction racist speech – as in the case of Sparrow.

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The Hate Speech Bill is, therefore, unnecessary. There is no gap in the law that it needs to fill.

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Problem 2 – the Bill is overbroad

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Constitution specifically

The Bill criminalises hate speech as follows:

“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.”

We see from the above, that the Bill defines hate speech as an expression that consists of the following elements:

1) Element1 - harmful or incites harm, and

2) Element2 - promotes or propagates hatred;

3) Element 3 - against a group of people specifically listed in the Bill.

Problems with the Bill’s definition of Element 1 – Harm

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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”

The Bill proposes a much broader definition of the element of harm than PEPUDA (a civil law). As a result, the Bill broadens the definition of hate speech, because it will catch more expressions in its “hate speech net” than will PEPUDA(with its narrower definition of harm) will.

This means the Bill – a criminal law – sets a lower bar for harm for the purposes of criminal hate speech than PEPUDA sets for civil hate speech.   It will therefore be easier for an expression to be harmful or incite harm (i.e. to meet Element 1 of hate speech)under the Bill than under PEPUDA. As a result, as the Bill currently reads, it will be easier to be convicted of criminal hate speech (and be imprisoned for up to eight (8) years) than civil hate speech (and be ordered to pay a fine and/or apologise). This is not only irrational but constitutionally indefensible.

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Problems with the Bill’s definition of Element 2 – Hate

The Bill fails to define hate. To reiterate – the Bill intends criminalising “hate speech” but it fails to define what the quintessential element of “hate” is. The result is that the courts, specifically the Magistrate’s Courts (Regional Courts) and High Courts charged with hearing these cases, will have to define this element.

Problems with Self-Defeating Exemption Clauses

Section 16(1) of the Constitution specifically states the right to freedom of expression includes:

a. freedom of the press and other media;

b. freedom to receive or impart information or ideas;

c. freedom of artistic creativity; and

d. academic freedom and freedom of scientific research.

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The Bill attempts to provide exemptions (i.e.protection)  or some of these freedoms, adequate protection notably fails to provide protection for the freedom to receive or impart information or ideas. It also provides in a for the right to religious freedom (section 15 of the Constitution).  

As shown below, with the insertion of the Bill’s definitions between square brackets in yellow, problematic drafting makes the clauses confusing and self-defeating:

The provisions of subsection (1) do not apply in respect of anything done as contemplated in subsection (1) 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 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 [Element 2 of the crime and undefined in the Bill] that constitutes incitement to cause harm [Element 1 of the crime and defined as substantial emotional, psychological, physical,social or economic detriment that objectively and severely undermines the humandignity of the targeted individual or groups ],based on one or more of the grounds [Element 3 of the crime and defined as (a)Albinism; (b) ethnic or social origin; (c) gender; (d) HIV or AIDS status; (e)nationality, migrant or refugee status or asylum seekers; (f) race; (g)religion; (h) sex; (i) sexual orientation, gender identity or expression or sexcharacteristics; or (j) skin colour].

Essentially the specifically listed inxemption clause reads that 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 potentially inciting (e.g.) substantialsocial – they are not guilty of the crime of hate speech as long asit wass done in good faith. This is, of course, unless what they say advocates hatred (which according to our ConstitutionalCourt means the same as promoting or propagating hatred, but with the Bill failing to define hate) that constitutes incitement to cause harm (which the Bill defines problematically) against a group of people sin the Bill.

As can be seen, only harmful speech is excluded. However, since the Bill’s definition of harm is vague and overbroad, hatred is undefined, and the extended list of persons is wider than the grounds listed in the Constitution and PEPUDA, the exemption clause offers very little (if any) practical protection.

Problem 3 – the Bill is unclear and/or vague and/or ambiguous

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As can be seen from the above definition of “harm”, concepts such as social harm (which the Bill defines as undermining South Africa’s social cohesion) are included in the types of harm to be covered by this criminal law. Social harm is a vague and nebulous concept at best and will be a brand new concept to criminal law.

The Bill’s definition of social harm is problematic because it does not provide much clarification on this as an element of a proposed criminal offence.  People clearly need to know when they are committing “social harm”.

The Bill also utterly fails to define the core element of “hate”, wanting to criminalise “hate speech” without telling people what “hate” is.

This wide definition of the element of harm (that includes nebulous concepts) and the failure to define the element of hate leads to a definition of hate speech that is unclear and/or vague and/or ambiguous.

The result is that people will not know whether their expression will be seen to be harmful or to incite harm and promote or propagate hate. Such uncertainty will cause people to be silent and self-censor rather than run the risk of facing possible “hate speech” charges.

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Problem 4 – The Bill Contravenes to the Rule of Law

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The Bill’s failure to define “hate” causes further problems: Leaving the most essential element of a statutory crime undefined is contrary to the rule of the law, which is a founding value (section 1(c) of the Constitution)of South Africa.

This is so for two (2)reasons:

One, by failing to define the element of hate in the proposed crime of hate speech, Parliament abdicates its legislative responsibility to the Magistrate’s Courts (Regional Courts) and High Court charged with hearing these cases and is thereby acting irrationally in the exercise of its legislative powers.

Two, this results in an unclear criminal law that members of the public will not be able to know beforehand that they are breaking.

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Problem 5 – The Bill Fails Section 36 (The Justification Analysis)

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FORSA submits that the Bill will not pass constitutional muster under section 36 of the Constitution for its limitation on the right of freedom of expression (section 16(1) of the Constitution), because there are less restrictive means available to achieve the Bill’s purpose – namely the different criminal and civil laws covered above - and these means are already being effectively used.

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The Bill is Unconstitutional

In light of all of the above, FOR SA submitted that the Bill is unconstitutional, because it:

One, contravenes section 36 of the Constitution by unreasonably and unjustifiably limiting various constitutional rights, specifically freedom of (religious) expression, due to:

1. Being unnecessary; and

2. Being overbroad and/or vague and ambiguous.

Two, contravenes the rule of law, one of the values that must be upheld and promoted when interpreting the Bill of Rights (section 39(1)(a)of the Constitution) which affirms the democratic values of dignity, equality and freedom (section 7(1) of the Constitution)

Failure to meet International Law Obligations

One of the reasons being given for the Bill, is that South Africa needs it to fulfil our international law obligations (specifically Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”)).

However, FOR SA pointed out in its submission to Parliament that this is incorrect to state that South Africa now needs the Bill to become law in order to meet our international obligations under international law.  In this regard, we note that ICERD was ratified by South Africa on 10 December 1998 – i.e. over 25 years ago!). Indeed, South Africa’s obligations in terms of ICERD are already covered by our existing law(mentioned above).

On the contrary, the bill would also cause South Africa to fall foul of its following international law obligations and commitments:

One, to uphold freedom of expression and freedom of religion including, as an integral component of that right, the right to manifest freely and without fear or hindrance, one’s religious convictions and beliefs in public through observance and practice.

Two, to only impose criminal sanctions for hate speech only as a last resort measure in strictly justifiable circumstances.

Finally, the Bill also fails to incorporate the requirements of the six-part United Nations’ (“UN”) Rabat Plan of Action threshold test (which is used to determine culpability for criminal hate speech).

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FOR SA Recommendations:

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In light of the above, FORSA recommended that Parliament consider the following:

1.   Omitting the hate speech provisions from the Bill altogether.

Alternatively, should Parliament decide that the hate speech provisions should remain in the Bill, that at maximum it remedy the unconstitutional aspects of the Bill by:

2.    Defining harm narrowly.

3.    Defininghatred and/or what it means to promote or pro.

4.    Clarifying and strengthening the religious exemption clause (clause 4 (2)(d)), to ensure adequate protection of the constitutional right to religious freedom, including religious expression, of all people – not only ministers of religion.

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