On 31 January 2017, the FW de Klerk Foundation, together with other advocates of freedom of expression, made a written submission to the Department of Justice on the Prevention and Combating of Hate Crimes and Hate Speech Bill (Hate Crimes and Hate Speech Bill). The Foundation used the opportunity to highlight that bolstering, consolidating and empowering existing laws and institutions is a sounder starting point than promulgating new laws with harsh consequences.
In brief, the Hate Crimes and Hate Speech Bill aims to criminalise the offences of hate speech and hate crimes. In terms of this proposed Bill, it is possible for a person to be imprisoned for three years following their first conviction for the offence of hate speech, with ten years imprisonment for subsequent offences.
The Foundation’s submission draws a clear distinction between the offence of hate crimes and hate speech, with the focus on the constitutionality of the offence of hate speech. We propose that the offence of hate speech be excluded in its entirety from the ambit of the Bill. The vague and far-reaching offence of hate speech does not fall within the constitutional parameters of hate speech in terms of Constitution. Therefore, it cannot be considered a reasonable limitation on the hard-fought right to freedom of expression. Freedom of expression should be strenuously defended in a robust democracy so as to shape the country we hope to leave for future generations. Considering the lack of statutory defences in the Bill, the Foundation’s concern is that the offence of hate speech could be greatly abused, and in turn stifle democratic debate in our society. The collective effect is that while hate speech is abhorrent, freedom of speech and expression should not be sacrificed at the altar of opportunism or populism.
The Foundation further briefly considered the offence of hate crimes. There is a need for proper reporting and data collection relating to hate crimes and that will be made possible by this Bill. However, it is vital that the offence of hate crimes be clearly defined and in line with international approaches. If there is no underlying criminal offence committed in terms our criminal law, then no hate crime could exist.
The DA has produced an amendment bill which seeks to strengthen existing legislation to “give it teeth”. It will be tabled before Parliament within the next month and then released for public comment and consideration. It is a practical and constitutional piece of legislation that we believe will be effective in tackling all forms of hate speech in South Africa. Critically, it achieves an appropriate balance between promoting freedom of expression and deterring hate speech.
R2K rejects the draft Prevention & Combating of Hate Crimes & Hate Speech Bill, which was open for public comment until this week. In our submission on the draft Bill, R2K made it clear that this draft Bill would criminalise freedom of expression and violate constitutional rights.
The draft Bill would make it a criminal offence to communicate, in any way, a message which insults a person or “brings into contempt or ridicule” any person or group of people. Doing so could result in a fine or a three-year jail sentence.
Draft Bill does not fix racism and other bigotry
This draft Bill does not fix the structural vestiges of racism, patriarchy, xenophobia and related intolerances. Instead it tries to criminalise individual behaviour while leaving the structural and institutional causes and factors that feed those intolerances.
As a measure against genuine discrimination, racism, xenophobia, homophobia and other forms of hateful expressions, we view this draft Bill as a ‘securitised’ response that violates the constitutional protections for freedom of expression, does nothing to address the root causes of the problem.
As an organisation, we stand against racism, xenophobia, misogyny, homophobia, transphobia and other forms of bigotry. This draft Bill ignores a range of current remedies and avenues open to victims of racism, sexism, homophobia, and other attacks on their dignity. The Equality Courts, for example, should be properly funded and properly advertised. Rather than strengthening the institutions set up to enforce and promote equality and justice, the draft Bill, if passed, will further undermine them.
Insulting the power could now be ‘hate speech’
R2K believes this draft Bill will be used to criminalise the right to protest and criticise. “Bringing contempt and ridicule” onto politicians, or corporate executives, and other people of power is an important national activity. We reject any legislation that could be used to protect the powerful from criticism.
In our submission to the Department of Justice, we call for the ‘hate speech’ provisions of the Bill to be scrapped completely. Freedom of expression as enshrined in our constitution and Article 9 of the African Charter on Human and Peoples’ Rights was hard won and must be defended at all times. This draft Bill is a ‘securitised’ response that violates the constitutional protections for freedom of expression and does nothing to address the root causes of the problem.
Read our full submission on this draft Bill here.