As I grow older, I have become more sceptical of the power of legislation (and of constitutional rights) to undo systemic forms of oppression and social and economic injustice. It is true that the law can sometimes provide relatively quick relief to individuals who have been wronged by somebody else – if those individuals have access to the requisite resources, of course. It can also be argued that the law may (over time) have a positive impact on society because at its best it may serve to educate people and to change societal culture for the better.
But it would be rather naïve to believe that passing the Prevention and Combating of Hate Crimes and Hate Speech Bill will lead to a quick end to systemic racism, patriarchy or homophobia in South Africa. But even on its own terms, the Bill is not without its problems.
The aspect of the Bill that particularly interests me is section 4, which creates the criminal offence of hate speech. While the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) currently regulates hate speech, it does not criminalise it. Individuals found guilty of hate speech in terms of PEPUDA do not get a criminal record and cannot be imprisoned.
Section 4 of the new Bill would change that. Section 4(1)(a) of the Bill defines the crime of hate speech as follows:
“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: age; albinism; birth; colour; culture; disability; ethnic or social origin; gender or gender identity; HIV status; language; nationality, migrant or refugee status; race; religion; sex, which includes intersex; or sexual orientation, is guilty of an offence of hate speech.”
The Bill does not say what would be “harmful”, but does define “harm” as “anyemotional, psychological, physical, social or economic harm”. Harm is not qualified by requiring that it must be “severe” “significant” or “substantial”. This means that if a reasonable person would conclude that your statement was intended to inflict any emotional, psychological or economic harm on another person because that person (amongst others) is white or black, male or female, gay or straight, religious or an atheist, it would constitute a criminal offence.
Let’s think of some possible examples to see whether the Bill might not have consequences not intended by the drafters. As the examples will illustrate, I fear that the Bill might have a chilling effect on speech aimed at exposing injustice and privilege and on many forms of robust political engagement.
First example. Imagine that yet another prominent man is accused of rape or sexual harassment and in response to this a woman tweets: “We need to fight back against these disgusting men. All men are trash.” Depending on the context, a reasonable person may well conclude that the woman had the intention to cause emotional or psychological harm to the alleged perpetrator because he is a man, or to some or all men, or that she was inciting emotional or psychological harm against some or all men. If correct, the woman would be committing a criminal offence and in terms of section 6(3)(a) of the Bill (if it was a ﬁrst conviction), she could be sentenced to a prison term of up to three years.
Second example. Imagine that a white man criticises the leader of the Economic Freedom Fighters (EFF) and points out that Malema still faced possible prosecution for corruption, fraud and money laundering relating to government contracts his political allies secured in Limpopo. In response, an EFF supporter then tweets: “Go back to Europe, you bloody settler. You whites stole the land so you must shut up. No matter what you say, we are coming for your land.” Again, given the broad definition of harm, and depending on the context, the EFF supporter may well be guilty of a criminal offence and liable for a three-year jail sentence.
A third example. The heterosexual owners of a wedding venue refuse to host same-sex weddings. I am incensed. I write an article in which I criticise “toxic heteronormativity” and heterosexual privilege and call for a boycott of the wedding venue owned by “these vile heterosexuals”. By doing so, I might well be exposing myself to possible prosecution for hate speech, again facing up to three years in jail.
Similarly, if yet another white person goes on a racist rant, and in response people on Twitter advocate a boycott of the “white-owned business” where the racist is employed, it might meet the definition of the crime of hate speech because the tweets might reasonably be construed as having the intention to incite economic harm against people based on their race.
Some of these examples illustrate a further problem with the Bill. As it currently reads, it does not take account of the fact that the impact of hateful speech on those who have suffered and continue to suffer from patterns of disadvantage and harm, will be far more severe than on those who are politically, socially and economically privileged and are not systematically subjugated because of their race, gender or sexuality.
There is a huge difference between a white person, heterosexual person or a man using speech with the intention to humiliate, inflict psychological harm, or incite physical harm against a black person, homosexual person or a woman respectively, than the other way around. In most cases (and, again, depending on the context) the impact in the first set of instances would be potentially far more severe than in the latter set of instances.
It is true that section 7 of the Bill requires the National Director of Public Prosecutions (NDPP), after consultation with the Director-General: Justice and Constitutional Development and the National Commissioner of the South African Police Service, to issue directives prescribing circumstances in which a charge of hate speech may be withdrawn, or a prosecution stopped. Moreover, section 4(3) states that any prosecution for hate speech must be authorised by the Director of Public Prosecutions or a person delegated by him or her.
This may potentially limit the possible impact of the crime of hate speech, but this may itself be a problem because it would grant almost unlimited discretion for prosecutors to decide when to prosecute and when not. The principle of legality requires legislation that creates criminal offences to be clear and precise. Granting such broad discretion to the NDPP allowing them to decide case-by-case when to prosecute and when not to prosecute, might infringe on the legality principle because it might become very difficult to know when you have done something that will be prosecuted and when not. In any event, this section does not preclude the pursuit of a private prosecution so it does not address my earlier concerns.
The Bill contains another provision that may make it a criminal offence to call out racists, sexists and homophobes on social media, and may make it difficult, maybe in some cases even impossible, to alert others on Twitter or Facebook or WhatsApp about such racist, sexist or homophobic statements. Section 4(1)(b) states that:
“Any person who intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech as contemplated in paragraph 4(1)(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 victim of hate speech, is guilty of an offence.”
Recall the event in 2018 when someone distributed the racist rant of Adam Catzavelos on social media in order to expose his racism. Most people who distributed the video in which Catzavelos used the most extreme racist language did so because they knew that this constituted hate speech, were disgusted by the video and wanted to alert others to this racism, perhaps hoping that a groundswell of disgust from South Africans would have both economic and legal consequences for Catzavelos.
If section 4(1)(b) as it now reads had been passed at the time this happened, every single person who distributed the video or quoted from the video on Facebook, Twitter or WhatsApp may well have been guilty of a criminal offence. Section 4(1)(b) is phrased in such a way that the state would not have to prove that you had the intention to promote hate speech when you distributed it, but only that you had the intent to distribute the hate speech (even if this was to expose the racism of Catzavelos).
It is true that section 4(2)(c) of the draft Bill provides important exceptions to protect individuals against prosecution, stating that the prohibition on distributing hate speech does not apply if it is done in good faith in the course of engagement in:
“Fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996.”
The exact meaning of this section is not easy to decipher. The first part obviously protects journalists who report or comment on hate speech occurrences. But how would they get to know about it if it is a criminal offence to spread hate speech as stated by section 4(1)(b) of the Bill? Also, in the age of social media, how does one make a neat distinction between fair and accurate reporting or commentary (presumably by journalists) and the more chaotic “reporting” done by citizens on social media. It is as if this section was drafted in 1994, before people who are not paid journalists had the ability to share and distribute information via social media.
I have re-read the second part of clause 4(2)(c) about 20 times and I still do not understand what it means. Maybe it is an attempt to cover the kind of situation that arises when ordinary people distribute hate speech in order to expose it – as happened in the Catzavelos case. But if that is so, the section does not achieve what it sets out to do. This is because it appears to allow non-journalists to publish information or commentary that is protected by the freedom of expression provision contained in section 16(1) of the Constitution. That would not include hate speech excluded by section 16(2) of the Constitution, which means the distribution of the Catzavelos video might remain a criminal offence.
I have raised only some of the potential problems with the current text of the draft Bill. Parliament still has the opportunity to amend the Bill, and when it does so, it would be good for Members of Parliament to consider the potential ways in which the Bill may be abused to stop robust (even rude) political discussion, or to protect the privileged from criticism. DM
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