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The recently published Prevention and Combating of Hate Crimes and Hate Speech Bill (hate speech bill) will not pass constitutional muster. The slapdash legislation is possibly the result of a state wanting to appear responsive to matters which shock the collective conscience of reasonable members of society. Its promulgation followed highly-publicised incidents published on social media and elsewhere.
The bill first seeks to create the offence of hate crime, which is motivated by prejudice. It also seeks to criminalise hate speech.
The first intention of the bill is a welcome development in South African law, as this plugs a legislative gap and further serves as a deterrent to would-be offenders. There is a need for legal regulation to ensure behaviour change. It is true too, that laws which are out of touch with the public create contempt for the law.
However, the second intention of the bill, to criminalise hate speech, fails constitutional muster. Nonetheless, this is not to suggest that the bill be scrapped or thrown out with the proverbial bathwater. There are three ways in which the bill could still be salvaged.
The first is for it to recognise that there already exists legal recourse for persons harmed by hate speech in the form of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act). The Equality Act creates equality courts, which then, through a legal process, have the authority to order that the respondent pays damages or issues a public apology, among other remedies.
The equality courts are, however, underused and the South African public at large seems to be unaware of their existence, let alone their purpose. The equality courts are well-placed to work as institutions which can advance South Africa’s reconciliation project through advancing the right to equality and to dignity. As such, the Hate Speech Bill needs to reflect the existence and workings of the equality courts.
Second, the Constitution provides clear parameters on the right to freedom of expression. Freedom of expression is meant to be enjoyed in its widest possible sense save for “(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 latter grounds are the only forms of expression which are proscribed by the Constitution whose characteristics are “advocacy” and “incitement to cause harm”. Laws may limit other forms of expression, but such laws should be justifiable if the law is of general application and reasonable in an open democratic society.
The Constitution lists “advocacy of hatred” based on just four grounds – while the Hate Speech Bill lists a further 13 grounds, including occupation. This frames what constitutes hate speech very broadly, and in the process infringes on freedom of expression and freedom of the media. It creates the real risk that “insult laws” may be introduced, which will in turn censor the media alongside the public right to access information.
There was in excess of 100 pieces of legislation promoting censorship before 1994, most of which were repealed soon after. As a backdrop to a changed society within a constitutional democracy, it is vital that there be free press. As former President Nelson Mandela said: “A critical, independent and investigative press is the lifeblood of any democracy. The press must be free from state interference. It must have the economic strength to stand up to the blandishments of government officials. It must have sufficient independence from vested interests to be bold and inquiring without fear or favour. It must enjoy the protection of the constitution, so that it can protect our rights as citizens…”
As such, the parameters of the Hate Speech Bill need to be delineated narrowly, in line with the Constitution in order not to unjustifiably infringe on other freedoms.
Third, the Hate Speech Bill should include defences or exemptions. At common law, defences such as truth, public interest or jest are available to counter a charge of defamation. There is already precedence for this. One need look no further than the Equality Act which creates exceptions to the prohibition of hate speech.
Where there is “bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest”, then exceptions may be made for hate speech falling outside of constitutional parameters.
South Africa’s particular history of marginalisation and exclusion needs to be viewed through the constitutional lens of openness, accountability and transparency. This requires, ultimately, that South Africa strikes a balance between hate speech, freedom of expression and non-discrimination. The current Hate Speech Bill fails that delicate balancing act, but can possibly find redemption through the Equality Courts, narrowly defining hate speech and also providing defences to the charge of hate speech.
- Phephelaphi Dube is director of the Centre for Constitutional Rights.
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