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Hate speech bill will have chilling effect on free speech and could be used to silence political opponents

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Tyla Dallas is Manager of Constitutional Programmes at the FW de Klerk Foundation.

The draconian measures contained in the bill to criminalise hate speech, could instead — and quite easily — be used by those with economic, social, or political power to silence their critics, and to end difficult discussions about race, gender, religion and sexuality.

The steamroller effect the new hate speech bill will have on freedom of expression in South Africa should not be underestimated. The bill poses real threats to the right to freedom of expression, not only of individuals and politicians — but also of journalists, artists, academics and religious practitioners – despite the limited exemptions from the provisions of the bill that they would be given.

The Prevention and Combating of Hate Crimes and Hate Speech Bill 2018 — currently before Parliament’s Justice Portfolio Committee — purports “to give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance…”.

These are laudable goals — provided that the proposed legislation will not limit the right to freedom of expression that is carefully defined and protected in section 16 of the Constitution.

However, many of the over 100,000 submissions that the public has made to Parliament have expressed deep concern that the bill would criminalise constitutionally protected speech and unreasonably limit the right to freedom of expression.

The bill creates two offences — the offence of hate crime and the offence of hate speech. It makes provision for more severe punishment for crimes motivated by hate, by requiring that hatred of people due to shared listed characteristics should be regarded as an aggravating factor in sentencing and by prescribing minimum sentences for such crimes — even though hatred is already considered an aggravating factor for statutory offences or under existing common law.

Whereas there is general consensus regarding the need to take resolute action against hate crimes, the whole question of “hate speech” is much more problematic because of the impact that the proposed bill might have on the core right to freedom of expression.

Section 16 of the Constitution confers on every person their right to freedom of expression, as long as it does not constitute propaganda for war, incitement of imminent violence, or advocate hatred based on race, ethnicity, gender or religion and that constitutes incitement to harm.

This closely defined provision was deliberate and regarded as essential for a multiparty system of democratic government as required by section 1(e) and by sections 15 and 19, which guarantee freedom of religion, belief and opinion, and free political activity.

In short — it is not possible to maintain a genuine democratic system without effective freedom of expression.

However, the bill goes much further than the clear intention of section 16 by increasing the number of protected characteristics from four (race, ethnicity, gender, or religion) to 15 — and by providing a new definition of “harm” that would include “emotional, psychological, physical, social, cultural or economic harm” — a definition so broad and so open to subjective interpretation as to make it almost meaningless.

In so doing, the bill goes much further than sections 9(3) and (4) of the Constitution — which prohibit unfair discrimination — and the 2021 Constitutional Court judgment in Qwelane v South African Human Rights Commission.

The Qwelane judgment held that only “deep emotional and psychological harm” constituted harm for purposes of hate speech. It also held that section 16(2)(c) must be read conjunctively — that is that prohibited speech must advocate hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.

By casting an extremely wide net for potential harm and by including a list of characteristics far broader than those contained in the section 9 Equality provision of the Constitution, the Bill opens the way for subjective considerations to determine liability, as opposed to objective facts.

The threat to freedom of expression is compounded by the possibility that anyone found guilty of hate speech might be sentenced to three years in prison for a first offence.

The very possibility of such a draconian sentence would immediately force people, media and internet platforms to self-censor the expression of any view that might upset anyone from the 15 categories of potential victims. This would seriously stifle free debate on a wide variety of topics.

Similarly, the bill’s extension of the definition of “victim” to include a “juristic person” would hinder civil society’s ability to call to account institutions and organisations for fear of being found guilty of hate speech.


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The bill does extend a broad exemption from its provisions for:

  • Any bona fide artistic creativity, performance or other form of expression;
  • Any academic or scientific inquiry;
  • Fair and accurate reporting or commentary in the public interest; or
  • The bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings.

But what about politicians and ordinary citizens participating in robust political debate? Why, in a system based on equality and on everyone’s right to receive and impart information and ideas, should artists, academics, journalists and religious practitioners enjoy greater rights to freedom of expression than politicians and ordinary citizens?

However, even in the case of religious communication, the proselytising and interpretation would have to take place in a religious place of worship or constitute some form of formal “proselytising” in public.

In Qwelane, the court held that only the most egregious forms of speech should face sanction — that even where speech shocks, offends and disturbs another, it would still be a constitutionally protected form of expression. The draconian measures contained in the bill to criminalise hate speech, could instead — and quite easily — be used by those with economic, social, or political power to silence their critics, and to end difficult discussions about race, gender, religion and sexuality.

This fear is cemented by a statement of the ANC’s National Executive Committee on 27 March 2017 in which it called on Parliament “to fast-track the promulgation of the Prevention and Combating of Hate Crimes and Hate Speech Bill which criminalises racism and metes out harsh consequences for those in our midst who continue to perpetuate it”. The NEC added that “where people refuse to be educated on their wrongs, they must be punished by the law. Such include opposition leaders who make utterances praising colonialism.” 

The ANC was, of course, referring to Helen Zille’s controversial tweet on 16 March 2017 following a visit to Singapore that “for those claiming the legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc.”

The chilling implication of the ANC statement was that a leading opposition politician should be harshly punished for the expression of a political opinion which — although controversial — was entirely permissible in terms of her right to freedom of expression under section 16 of the Constitution.

Genuine, robust debate on issues of the day is an essential prerequisite for democratic governance to ensure accountability, responsiveness and openness. As such, the constitutional right to freedom of expression should be strenuously defended. The current law adequately provides remedies and sanctions for hate speech, rendering the hate speech clause unnecessary and easily severable from the balance of the bill — the hate speech clause should be scrapped in its entirety.

When considering the need for legislation on hate speech, the government should have been guided by the “international human rights instruments” that it cited as one of the reasons for the legislation. The bill should, perhaps, have given greater attention to hate speech guidelines of the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd). These include consideration of the context of the impugned speech in terms of:

  • The content and form of speech;
  • The economic, social and political climate prevalent at the time the speech was made;
  • The position or status of the speaker;
  • The reach of the speech; and
  • The objectives of the speech.

The Icerd’s recommendations went on to:

  • Warn against the criminalisation of unimportant offenders;
  • Express particular concern with regard to racist expressions emanating from public authorities or public institutions — “especially statements attributed to high-ranking officials”;
  • Insist that the “expression of opinion about historical facts” should not be prohibited or punished; and, most importantly,
  • Stress that “independent, impartial and informed judicial bodies are crucial to ensuring that the facts and legal qualifications of individual cases are assessed consistently with international standards of human rights”.

If passed by the National Assembly, the bill will move on to the National Council of Provinces for further public consultation, deliberation, and voting. In its current form, the bill does not offer clarity or legal certainty regarding the proposed crime of hate speech, yet it might result in a criminal sanction of three years imprisonment.

Similarly, the “safeguards” meant to be afforded through the Director of Public Prosecutions’ oversight and the objective “reasonable person” test do not meet the standards set in criminal law — that the law be clear and certain.

What is clear — noting the numerous and at times contradictory court rulings dealing with hate speech — is that harmful speech does not equate to “harm” and will not always lead to sanction. The same should be the case for any criminal offence envisaged.

The bill makes it far easier for a person to be found guilty of the crime of hate speech and sent to jail than for someone who commits a civil offence to be ordered to merely apologise — and could be used to silence critics of political figures, especially if the ruling party felt threatened — as evidenced in Venezuela and other countries around the world.

The censorship of free expression will do nothing to eliminate hate, but will rather drive it further underground and make it harder to identify, report and act against. DM

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Comments - Please in order to comment.

  • Karl Sittlinger says:

    So would a statement like : the ANC is a bunch of thieving clowns be considered hate speech under the new bill? I shudder to think what they would do if this bill is signed into law.

  • Chris Green says:

    Chinese training kicking in ….. be afraid, be very afraid !! Police numbers being increased under the guise of eliminating crime – LOL, fortunately the army is in disarray. Prepare to “prepare to die ” for your beliefs, statements, opinions, etc, because it’s on its way.

  • Alan Paterson says:

    As an aside, I’ve never understood how the “infamous” Zille tweet was controversial. If signed into law, hopefully I can still watch Monty Python as long as I don’t tweet that I laughed at Life of Brian – what have the Romans ever done for us?

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