Under the new laws, hate speech will be defined as a clear intention to be harmful or to incite harm, or promote or propagate hatred on the basis of these characteristics:
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).
The latest version of the Bill includes a section of scenarios where the hate speech rules will not apply.
The new section states that the offence of hate speech does not apply in respect, terms of the above characteristics, if it is done in good faith in the course of engagement in:
- Any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm;
- Any academic or scientific inquiry;
- 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;
- The bona fide interpretation and proselytising or espousing of any religioustenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm.
While the changes made will likely be welcomed due to the protection that they now offer to people acting under good faith, adding additional tests for what does and does not qualify as ‘hate speech’ is also likely to greatly complicate the offence.
This is important, as someone who assumed that they had protection and said things in good faith (and for those who would be protected under current laws) could still face severe punishments should they be found guilty of the offence of hate speech.
This includes a fine and imprisonment not exceeding three years for first-time offenders, and a fine or imprisonment for a period not exceeding five years for any subsequent offences. (BusinessTech)
The GCIS website says the bill aims 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, in accordance with international law obligations;
- Provide for the offence of hate crime and the offence of hate speech and the prosecution of persons who commit those offences;
- Provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences;
- Provide for the prevention of hate crimes and hate speech;
- Provide for the reporting on the implementation, application and administration of this Act; and
- Effect consequential amendments to certain Acts of Parliament; and to provide for matters connected therewith.
Issued by 31 May 2018
Trade union Solidarity today strongly condemned the hate speech bill. Connie Mulder, Head of the Solidarity Research Institute (SRI), explained that the potential positive impact of this bill is doubtful and that its application could lead to a suppression of constitutional rights and the ability of citizens to hold their politicians accountable for misconduct.
“The bill is simply formulated too broadly, and will necessarily lead to arbitrary and unlawful application. It is conceivable that this bill, should it be accepted, could impose imprisonment on any individual simply because the individual deviated from the ideology of the ruling party,” said Mulder.
The trade union Solidarity believes that a public forum must be created where all ideas, even those that people think may be despicable, can be debated. “The only way we as South Africans will be able to cast bad ideas out of society is by fighting them with good ideas. This requires dialogue, debate and confidence to truly say what we think. By stigmatising some statements as unlawful, we ensure that those issues remain in the shadows where we are unable to address them,” said Mulder.
According to Mulder, government’s recent actions are increasingly aimed at restricting thoughts. “It is very disturbing. For South Africa to work, our society must be allowed to be freer in their thoughts and speech, rather than more restricted,” Mulder said.
“The criminalisation of speech has a terrible history that almost always holds an existential threat for a country’s democracy. It was wrong with the Germans in 1940, the Soviet Union under Stalin, the Apartheid government of the previous dispensation and it remains wrong until today. The government must never be allowed to force her social and ideological values onto the citizenry. The rightful institutions for the promotion of values will always be communities, churches and social institutions. The government should rather focus on the country instead of on thoughts,” Mulder concluded.