Should hate speech be a crime?
Criminalising inflammatory remarks alongside hate crimes could stifle free speech, activists say
Activists have voiced concerns over the chilling effect the inclusion of hate speech provisions in the Hate Crimes Bill could have on freedom of speech.
Last month, the Cabinet’s decision to publish the Prevention and Combating of Hate Crimes and Hate Speech Bill for public comment was welcomed, but the inclusion of hate speech provisions raised concerns.
Mark Gevisser, the lead content adviser for a recently released report titled Canaries in the Coal Mines — An Analysis of Spaces for LGBTI (lesbian, gay, bisexual, transgender and intersex) Activism in Southern Africa, says he is sceptical about hate speech legislation because of how it could affect freedom of speech.
“The bar needs to be set very high — incitement has to be proven. In other words, saying ‘I hate lesbians’ should not be a crime, but raping someone because they are a lesbian should be a crime,” he says.
Sanja Bornman, chairperson of the Hate Crimes Working Group and managing attorney of the Lawyers for Human Rights gender equal- ity project, says the inclusion of the hate speech provisions was “very bad news for victims of hate crime, which affects a wide range of people on the basis of race, nationality, gender identity and many other grounds”.
A network of civil society organisations set up the working group to “spearhead advocacy and reform initiatives pertaining to hate crimes in South Africa”. But though the group was concerned about criminalising hate speech and said the provision could result in delaying the Bill’s promulgation into law, it was glad the Bill is out for comment.
The Bill aims “to give effect to South Africa’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”.
It also seeks to address “the offence of hate crimes and the offence of hate speech, and the prosecution of persons who commit those crimes, [and] to provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences”.
Speaking at the working group’s annual general meeting in March, Deputy Minister of Justice and Constitutional Development John Jeffery said “the Bill initially excluded hate speech and the criminalisation of unfair discrimination … because of the sensitivities and complexities involved, particularly in a multicultural country”.
But after a number of inflammatory racist remarks on social media platforms came to light, Jeffery said the need to include hate speech provisions became clear.
He told the working group: “The Bill … has thus been adapted to include hate speech. It incorporates the comments of the working group and will now be subjected to a broad public consultation process.”
But, says Bornman, the Bill’s provisions were “not at the behest of the working group” and its members were “surprised” at their inclusion.
“We feel that there are existing laws in place, such as the provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act [Pepuda], which could be improved to deal adequately with hate speech,” she says.
Section 10 of Pepuda says: “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm [and/or] promote or propagate hatred.”
Bornman says its provisions “could be beefed up to be more up to date with our daily lives. When Pepuda was promulgated, social media was not such a big part of our lives.”
The group will include its concerns in its written submission as part of the public comment process, by the December 1 deadline, though it has requested an extension.
Says Bornman: “We do not believe civil society can provide meaningful comment on the Bill at this late stage in the year and in the space of a month. The Bill is too important to rush through this comments phase after 10 years of hard work.”
Whether or not the hate speech provisions are removed from the Bill remains to be seen. But its effectiveness, says Gevisser, will be determined by the manner of its implementation.
“In South Africa, there is a dissonance between legal acceptance and social acceptance. One way to explain this disjuncture is the way these legal reforms are implemented. We often have Rolls-Royce policies that are not implemented at grassroots level.”