The Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018 [B9-2018] is within touching distance of being legislated.

The bill has gone through all the parliamentary processes necessary. All that needs to happen is for President Cyril Ramaphosa to sign it into law. We at the Free Speech Union South Africa (FSU SA), a unit of the Institute of Race Relations, urge him not to do so.

Many commentators and politicians are supporting the bill because it would criminalise racist speech. Almost every supporter of the bill talks about the need for such legislation as a means to “eliminate racism”.

The draft law certainly recognises the opprobriousness of racism, but is it the solution?

The problem is that trying to eliminate racism is like trying to pin down mercury. Racism is an expression of people’s thoughts and feelings, upbringing and experience, interactions and education — these all change over time. Often racism ebbs and flows depending on people’s personal experiences of the political forces in society. People are likely to develop odious views and express those views when times are difficult.

Scapegoating people to justify and legitimise one’s own views is resorted to with depressing frequency. It finds expression in South Africa most commonly when xenophobia raises its ugly head. Sometimes racism has flourished as a result of people being repeatedly exposed to tropes and conspiracy theories by influencers active on social media, the views of family members or the opinions of peer groups.

The drafters of the Constitution gave unambiguous support to the right to free speech being a foundational issue for a democratic society by keeping the grounds for limiting free speech narrow. The limitations are in terms of Section 16(2):

“Freedom of expression

16. (1)…

          (2) The right in subsection (1) does not extend to—

               (a)  propaganda for war;

               (b)  incitement of imminent violence; or

               (c)  advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

The grounds for prohibition are confined to those we could consider being the key grounds — race, ethnicity, gender and religion. These grounds for hatred are most likely to have an impact on the greatest number of people, and thus be likely to promote the envisaged threats.

The preamble to the bill claims that our international commitments oblige us to criminalise speech. South Africa has committed itself to upholding the declaration adopted at the United  World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban in 2001.

The declaration urges states to adopt effective measures to combat criminal acts motivated by racism, racial discrimination, xenophobia and related intolerance, to take measures so that such motivations are considered an aggravating factor for the purposes of sentencing, to prevent these crimes from going unpunished and to ensure the rule of law.

(The great irony of the Durban conference was that it was a week of intense, public anti-Semitic demonstration, the like of which hadn’t been seen since World War 2.)

Dr Anthea Jeffery, Head of Policy Research at the IRR, notes that this argument is not valid as the declaration is not binding on us. She says further we have already complied with the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) with the enactment of the existing Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Pepuda).

Jeffery further points out that the criminal law already prohibits acts of violence, and incitement to such acts, while a racist or other motive can already be taken into account as an aggravating factor in sentencing.

Freedom of speech and existing legislation

Our constitutional right to free speech, however, is circumscribed by Pepuda. One of the purposes of Pepuda is “to prevent and prohibit hate speech”. The liability for harmful or hateful speech in terms of Pepuda is civil, not criminal.

Pepuda allows hate speech to be determined by the Equality Court through civil action. Imprisonment is not a legal remedy.

Thus the bill was drafted. However, the criminal hate speech provisions in the bill go well beyond the constitutional limits. First, there are 15 prohibited grounds, not four. Second, the bill will prohibit and criminally punish speech which has “a clear intention to be harmful or incite harm, or to promote or propagate hatred”. This wording is far wider than Section 16(2)(c) of the Constitution.

Section 36 is the provision in the Constitution that provides for a limitation of rights. The limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Account must be taken of the nature of the right; the importance of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and whether there are less restrictive means to achieve the purpose.”

The FSU SA would argue that the bill doesn’t meet the requirements of Section 36 and may be unconstitutional as a result.

The bill defines a “hate crime” as “an offence recognised under any law, the commission of which is motivated…[by] prejudice, bias, or intolerance towards the victim” which is based on the victim’s race or other “characteristics”. 

Most incidents of racism will be expressed by individuals to other individuals (except perhaps the racism that seems to be an article of faith for the Economic Freedom Fighters).

Such appalling slurs, whether spoken or written are likely to hurt, or to instil anger or even outrage. But is the generation of intense feelings harmful? “Harm” is what would have to be proved and pronounced upon by a court, which will be no easy task and will necessarily be decided on a case-to-case basis. And is harm what is experienced, or hurt?

In any event, currently, courts are obliged to take account of all the circumstances of a crime in deciding on an appropriate sentence for the accused. Facts presented in aggravation of penalty would probably only have to be established on the balance of probabilities. This means that courts can regard a racial motive as an aggravating factor in determining punishment.

For the FSU SA, the definition of hate speech as a crime is too wide. The crime of hatred will have to be proved “beyond a reasonable doubt”. Prosecutors are expected to introduce “victim impact statements”, even though they may be based on hearsay or other inadmissible evidence. The admission of these statements may encourage harsh sentences for speech that should not merit any punishment at all in an open democracy.

The FSU SA suggests that there is no need for additional hate speech provisions even though many commentators claim that the bill is necessary to counter a plethora of racial incidents on social media. Eight comprehensive opinion polls on racial issues commissioned by the IRR over the years have shown that very few South Africans, including black respondents, identify racism as a serious, unresolved problem.

No silver bullet

Mia Swart, professor of international law at the University of Johannesburg was quoted (in a Business Day report in January 2016) as saying “freedom of speech means nothing if it does not include the freedom to engage in unpopular, controversial, and even offensive speech. Freedom of speech would not be necessary if it covered and protected only correct and innocuous speech… The debates [in this case, on the Penny Sparrow issue] show that South Africans are sufficiently vocal to remedy speech with speech.”

Read more in Daily Maverick: It’s time to act and stamp out white supremacy, once and for all

Would criminalising hate speech rid us of racism and other bigotry? It may chasten the accused or it may feed his or her hatred. It will probably make other racists keep their heads down — for a while. The bill calls for a “criminal justice-centric response” to what is a “socio-cultural” issue.

But criminalising “offensive behaviour” is not likely to bring change. What is required is a multiplicity of approaches that could include raising public awareness through education; just ignoring the racist; fighting racism on social media; ostracising the culprit; inviting the racist to sit down and discuss the issue, and so on.

Government should bring the hate speech provisions in Pepuda into line with the Constitution. The hate speech bill, on the other hand, is unconstitutional and unnecessary.

Public figures make racist statements all the time: sometimes they are taken to task under Pepuda; often they just go on their way with no consequence. These instances are far more problematic than one-on-one hate speech.

The Equality Court cases of Penny Sparrow and Adam Catzavelos showed that their public shaming online and off, their exposure and being ultimately regarded as pariahs, and the pressure these dynamics produced, were very harsh ways of learning a lesson. They were racist and stupid, and even though they didn’t harm anyone in particular, they offended South Africans and they paid the price for it, without their actions having to be turned into a crime. 

Read more in Daily Maverick: Let’s avoid the trap of black fragility: Tempering the right to express outrage with moral wisdom

FSU SA agrees with the comment by British gay rights campaigner Peter Tatchell: “Free speech does not mean giving bigots a free pass. It includes the right and moral imperative to challenge, oppose and protest bigoted views. Bad ideas are most effectively defeated by good ideas — backed up by ethics, reason — rather than by bans and censorship.” DM