When Dr Samuel Johnson completed the first real English dictionary in 1755 he was met outside his London home by two prudish ladies of high society. The ladies thanked him for omitting “indelicate and objectionable” words from his dictionary, to which Dr Johnson is reported to have replied, “What, my dears! Have you been looking for them?”

The Promotion and Combatting of Hate Crimes and Hate Speech Bill is currently under public comment, and if passed will become the most significant piece of legislation to limit freedom of expression since the days of the Riotous Assemblies Act of 1956. The government believes that this legislation is necessary in order to promote social cohesion, and that the prevalence of racist, sexist and homophobic thought, among others, will disappear under the threat of criminal sanction.

They are wrong.

The Bill in its current state is unconstitutional, and even with amendments, it is unlikely to be saved from this fate. It alters the constitutional framework for hate speech which requires both the advocacy of hatred and an incitement to cause harm on the basis of race, gender, ethnicity and religion. The Bill no longer requires the advocacy of hatred, nor does it require the incitement to cause harm – simple offence, ridicule, insult, and threatening remarks now fall within the parameters of hate speech.

Parliament does not have the power to change the constitutional scheme of a provision through simple legislation. The negotiating history of the hate speech clause was achieved by political compromise and back-and-forth between the African National Congress and the Democratic Party. The late Dene Smuts, a champion of free speech and the DP’s negotiator, fervently opposed the hate speech clause. She lost this battle, and a compromise was reached with the ANC to require the incitement to cause harm on the four listed grounds. Not only would the Bill do away this – an effective amendment to the constitutional clause – but it also establishes 13 new categories against whom hate speech may be committed. The Constitutional Court has previously declared, in a 2002 hate speech decision, that extending the categories beyond those mentioned in the Constitution is unconstitutional.

But still, perhaps the most striking thing about the Bill is the reach that it has: it does not draw a distinction between private and public communication; indeed, it expressly considers communication to be without limitation. The effect of this is that no audience is required to hear the speech in order for it to become hate speech. The short-term benefit of reporting that bigoted relative who visits for dinner perhaps more than you would like, and the imposition of a three-year term of imprisonment, may seem appealing, but the effect of this on the constitutional scheme would be disastrous for open and free debate in our society, not to mention the effect on comedians, cartoonists, satirists and a free and independent media.

The cartoonist who draws a picture of a powerful politician sexually assaulting lady justice, or the artist who paints the president in the nude, will find themselves captured by section 4 of the Hate Speech Bill. You may even find your local priest in need of tithings to pay the fine imposed for preaching the tenets of Leviticus, if the government is unrepentant about the Bill becoming law. Sure, courts will balance the freedom of artistic creativity against the hate speech clause in the Hate Speech Bill, but experience has shown that our courts have often been unbalanced when undertaking this enquiry, and more important, it should not have to undertake a balancing enquiry where a law would be inconsistent with the Constitution.

Our courts and commissions have also sought to limit speech where it is “offensive to sections of society” or where it “marginalises minority groups” and has declared that certain speech be banned. The lamentable decision of Judge Colin Lamont on the singing of Dubula iBhunu (Shoot the Boer) is an example of this. He banned the song on the grounds that a reasonable person hearing it would consider it hate speech as it advocates hatred towards Afrikaners and could reasonably be seen as an incitement to cause harm. This decision was based on a reasonable Afrikaner, not a reasonable South African imbued with the values of our Constitution and appreciative of freedom of expression, the context in which it occurs, open debate, critical discussion and disagreement. He also assumes that all Afrikaans persons are bound to feel the same way, where they could equally be indifferent to the speech, or even find it amusing in the context in which it is sung. Immediately after the decision, the ANC Youth League, in defiance, sang the song outside of the Johannesburg High Court.

Criminalising hate speech in order to achieve social cohesion makes the same mistake as Judge Lamont. It assumes that a proscription results in the extirpation of racist, sexist and homophobic speech, among others, and that society will no longer harbour these thoughts because they are not in the public space. A law that does this would be self-defeating. Those prosecuted for hate speech would invariably gain the attention of the media and will, in any event, give that speech a public platform when they are put on trial. It is conceivable that those sympathetic to the speech may even feel more aggrieved by what they would consider an unjust prosecution – the ANCYL example immediately after the banning of Dubula iBhunu clearly demonstrates this.

All of this does not suggest that there should never be any reprisal for hate speech – there should – but our Constitution perceptively determines when this should occur so as to protect freedom of expression and remove speech that advocates hatred and incites harm on the basis of race, gender, ethnicity and religion, contextually understanding the circumstances in which the speech occurs.

South Africans have a fantastic record of lambasting those who publicly spew racism and other forms of bigotry, having the unique effect of bringing about medical conditions in these bigots. This in my view achieves far more for society than a criminal prohibition. We ought not to operate under the illusion that unity is built by pretending that division does not exist, and that when it pops up, the law can silence you and all will be well. Engagement is more effective than incarceration. DM

Kessler Perumalsamy is a South African foreigner in Trumpland where he reads and writes on comparative constitutional, administrative and international law as a Fulbright Scholar.

Photo: President Jacob Zuma with Minister of State Security David Mahlobo at the African Union Summit in Kigali, Rwanda, 17 July 2016. (Photo: GCIS)