It seems apt, given the recent increase in xenophobia, that the Draft Hate Crimes and Hate Speech Bill should be before Parliament for public submissions. This week, Media Monitoring Africa (MMA), supported by Advocate Ben Winks and Power Singh Attorneys, will be making an oral submission on a bill which seeks to address critical challenges that undermine our democracy.

There seems to be broad support for condemning and acting against hate crimes and hate speech in particular — at least for those who support a just, fair, and equitable society. The challenge, of course, is saying we need to act against these crimes — actually working out effective and reasonable means of doing so is not nearly so easy.

Indeed understanding what might be considered for each of these crimes is really difficult (as outlined here) and then ensuring that they constitute an acceptable limitation on other rights like freedom of expression adds an additional tricky element. Adding to the challenge is the reality that the same expression in one context might be hate speech but in another may not.

For example — displaying the old South African flag during a protest march may be hate speech but showing it in a textbook on South African history may not. Just because it is difficult, however, should not undermine the necessity of addressing hate speech and hate crimes, and to that extent, the state is not only acting in line with its international obligations but also its constitutional mandate to find ways of doing so.

The current Hate Crimes and Hate Speech Bill has gone through several iterations since it was introduced in 2017. In the first iteration, hate speech was so broadly defined that cartoonists who satirised just about anybody could have gone to jail for a long time. The current iteration before Parliament is a significant improvement, but in its current form, is unconstitutional. There are a number of critical issues that can and must be addressed and we set them out here. It is worth unpacking two of the most critical ones.

Nathi Mthethwa’s (final?) monumental red flag

Hate speech

The bill currently defines hate speech as:

“Any person who intentionally publishes, propagates or advocates anything or communicates 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; or

(ii) promote or propagate hatred, based on one or more of the following grounds:”

The bill then lists 15 prohibited grounds, including, race, sex, religion, and ethnic nationality. The challenge with this definition is that it largely copies the provision in the Equality Act, with some key differences, differences that mean it is unconstitutional.

To begin with, unlike the definition in the Equality Act which involves civil prohibitions, the definition in the Hate Speech Bill would be criminal. Not only do these differences impact possible sentences but also shift requirements of proof from a balance of probabilities in a civil matter to beyond a reasonable doubt in a criminal case.

However, on a more practical basis, it seems unnecessary and disproportionate and thus likely unconstitutional to criminalise conduct that the Equality Act already covers.

In addition, the bill’s definition of hate speech is overly broad — for something to be hate speech it only needs to demonstrate an intention to be harmful or incite harm or promote or propagate hatred. It’s a classic example of how important the word “or” can be. It means the difference between requiring only one of those grounds or possibly all of them.

In the Jon Qwelane judgment, the court devoted considerable time to determining whether it is enough for speech to be hurtful or harmful and advocate hatred and incite harm or if one of those grounds were sufficient. In the end, the court ruled that on their own, i.e. disjunctively, it would not be sufficient as “a disjunctive reading would render the impugned section unconstitutional, since merely hurtful speech, with no element of hatred or incitement, could, for example, constitute prohibited hate speech. This would be an impermissible infringement of freedom of expression as it would bar speech that disturbs, offends and shocks.” (Qwelane judgment paragraph 104).

Thus, the current definition in the bill is not compliant with the Constitutional Court definition, as it allows for content that is harmful or incites harm or propagates hatred, and that is not enough.

We argue that for South Africa to be in compliance with our constitutional and international obligations, hate speech should be defined as: “Any person who intentionally engages in advocacy of hatred that constitutes incitement to cause harm, based on one or more of the following grounds”. We then support broadly the same list of prohibited grounds.

Hate crimes

It is essential that there is a clear framework for the state to address hate crimes. Unfortunately, the bill in its current form seeks to create hate crimes as a new series of offences that are already covered by other pieces of legislation. The difficulty with that approach is that a person could then be charged with murder and or murder with a hateful motive. The potential for confusion with such an approach is tremendous.

Instead, the bill should rather establish “hateful intent” as a compulsory aggravating element in sentencing. We believe this solution would ensure appropriate consequences for these very serious offences, but also greatly simplify the legal framework, bring the bill in line with international best practice, and minimise the additional burden on the criminal justice system by streamlining investigations and prosecutions.

There is a range of other issues that we believe need to be addressed, aside from the criminalisation. Martin Luther King Jr said “darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.” Combating hate speech and hate crimes isn’t only about consequences, redress, and accountability. It needs also to be about prevention, moving forward and seeking to reduce hate crimes and hate speech.

Accordingly, we also recommend that the bill builds in a mechanism for monitoring and reporting of the implementation of the legislation, but also tracking of the kinds of offences. In this way, the state, Chapter 9 bodies and the public can track and help target interventions.

It is also important that in addition to education and information campaigns about the prohibition of hate speech and hate crimes, the key principle of restorative justice is also included and infused into education and information campaigns. Further, we submit that restorative and alternative justice measures should be included alongside criminal penalties.

The Constitutional Court has, on several occasions, applied restorative justice approaches. In Dikoko, restorative justice was linked to dignity and ubuntu. More recently, the Constitutional Court explained that “restorative justice is understood to be both ‘backwards-looking’ as it deals with the ‘aftermath of the offence’, and ‘forward-looking’, since it takes into account the implications for the future. Restorative justice encourages rehabilitation and reintegration.”

We submit that an emphasis on restorative justice, both in terms of penalties, and in terms of education will ensure real consequences for egregious acts of hate speech, while also building social cohesion and breaking cycles of hate and prejudice.

South Africa is a country where issues of hate speech are taken seriously and bodies exist to take action, such as the South African Human Rights Commission. Empowering members of the public to act against hate speech found on digital platforms, systems such as Real411 provide an opportunity to report instances of hate speech online and where content is found to meet the criteria for hate speech, action is taken.

For those of us who want to help combat hate, it isn’t enough to condemn — we need to show consequence, hold those responsible accountable, implement meaningful forms of redress and we need to counter the hate with dignity and equality. DM

William Bird is director of Media Monitoring Africa (MMA) and Thandi Smith heads the Policy & Quality Programme at MMA, a partner in the 411 platform to counter disinformation.

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