Bal­anc­ing act: free­dom vs ha­tred

CityPress - - Voices & Careers -

The in­clu­sion of race as a ba­sis for prej­u­dice in the draft hate crimes bill is es­pe­cially sig­nif­i­cant. As re­cently as Novem­ber 7 2016, two white farm­ers car­ried out a hor­rific at­tack on a black man. In a Mid­dle­burg court, the ac­cused, Willem Oosthuizen and Theo Martins Jack­son, were charged with as­sault and in­tent to cause griev­ous bod­ily harm af­ter a video emerged on­line show­ing them push­ing Vic­tor Mlotshwa into a cof­fin and threat­en­ing to burn him alive. They have been de­nied bail. The Hu­man Rights Com­mis­sion is mon­i­tor­ing the pro­ceed­ings in the crim­i­nal court.

Racist speech is par­tic­u­larly trou­bling, con­sid­er­ing the legacy of apartheid. In­deed, the UN Com­mit­tee on the Elim­i­na­tion of Racial Dis­crim­i­na­tion ex­pressed grave con­cern about the ab­sence of leg­is­la­tion to tackle hate crimes and hate speech in South Africa and en­cour­aged the gov­ern­ment to pass a law that com­plies with in­ter­na­tional hu­man rights norms and stan­dards. How­ever, in its cur­rent form, the hate speech pro­vi­sion is too broad and may give rise to se­ri­ous vi­o­la­tions of free­dom of ex­pres­sion.

There are al­ter­na­tive av­enues to ad­dress­ing hate and racist speech other than cre­at­ing broad, dam­ag­ing crim­i­nal of­fences. The Pro­mo­tion of Equal­ity and Pre­ven­tion of Un­fair Dis­crim­i­na­tion Act not only pro­hibits hate speech, but sec­tion 10(2) al­ready em­pow­ers the court to “re­fer any case deal­ing with the pub­li­ca­tion, ad­vo­cacy, prop­a­ga­tion or com­mu­ni­ca­tion of hate speech” to the na­tional di­rec­tor of pub­lic prose­cu­tions for crim­i­nal pro­ceed­ings. A case in point: back in 2009, the Hu­man Rights Com­mis­sion brought a case in the Equal­ity Court over an ar­ti­cle with the head­line “Call me names, but gay is not okay”. Fast-for­ward seven years, and the case – and the au­thor’s con­sti­tu­tional chal­lenge to sec­tion 10 (hate speech pro­vi­sions) of the equal­ity act – re­mains un­re­solved. While the ex­pres­sion of con­tro­ver­sial ideas and opin­ions about les­bian and gay peo­ple should gen­er­ally be re­garded as le­git­i­mate ex­er­cises of the right to free­dom of ex­pres­sion in a free and demo­cratic so­ci­ety, the Con­sti­tu­tional Court has ex­plic­itly recog­nised that les­bian and gay peo­ple are a vul­ner­a­ble sec­tion of so­ci­ety who have his­tor­i­cally ex­pe­ri­enced wide­spread dis­crim­i­na­tion and prej­u­dice. When the com­plaint was filed, les­bian and gay or­gan­i­sa­tions were rou­tinely deal­ing with re­ports of sex­ual vi­o­lence and mur­der of black les­bians and trans­gen­der men. But even in a case in which speech clearly could do harm, over­broad pro­vi­sions will not pro­duce jus­tice.

The hate crimes bill did not orig­i­nally crim­i­nalise hate speech, but the jus­tice depart­ment ar­gued for its in­clu­sion, cit­ing re­cent racist com­ments on so­cial me­dia. But ex­ist­ing laws, in par­tic­u­lar the equal­ity act, deal ad­e­quately with hate speech and ad­di­tional leg­is­la­tion is un­nec­es­sary and un­jus­ti­fied. The gov­ern­ment can ad­dress the emerg­ing and deeply trou­bling trend of racist speech by en­sur­ing that or­di­nary South Africans are able to file cases un­der the equal­ity act, and that the Hu­man Rights Com­mis­sion has the re­sources to pur­sue and mon­i­tor the cases.

The gov­ern­ment should adopt and ef­fec­tively im­ple­ment hate crimes leg­is­la­tion, but can and should do so in a way that en­sures the crim­i­nal law only ap­plies to the most se­ri­ous cases, in­volv­ing crim­i­nal be­hav­iour such as vi­o­lence. The ex­pres­sion of con­tro­ver­sial ideas or opin­ions, no mat­ter how of­fen­sive, when made with­out in­cite­ment to vi­o­lence, should be re­garded as the le­git­i­mate ex­er­cis­ing of the con­sti­tu­tion­ally and in­ter­na­tion­ally pro­tected right to free­dom of speech. Isaack is an LGBT rights re­searcher

at Hu­man Rights Watch

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