Bill on hate speech set to protect
Religious concerns valid, but may not be used for inciting harm
THE Hate Crimes and Hate Speech Bill, recently published for public comment by the Department of Justice and Constitutional Development, has generated considerable debate, specifically in relation to the provisions on hate speech.
In particular, many church leaders have expressed fears that the bill will “criminalise the Bible”.
The bill does two things. Firstly, it creates a category of hate crimes. These are effectively existing crimes which are motivated by a dislike of the group that the victim belongs to. For example, a person throwing a brick at a mosque will currently be committing the crime of malicious injury to property, but once the bill is passed, if it can be proved that the brick was thrown at the mosque was because the person dislikes Muslims, it would then be a hate crime.
If crimes are found to be hate crimes, it elevates the seriousness of the crime, the way it is dealt with by the criminal justice system and the penalties imposed.
Secondly, the bill creates the crime of hate speech. Including hate speech as a crime was a more recent insertion, and was added in response to the slew of racist diatribes being circulated on social media. Currently, the only remedy for hate speech is to approach an equality court for a civil order in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act. It was felt criminalising such conduct would act as a deterrent and cause people to think twice before expressing such views.
Putting a bill out for public comment is not a meaningless exercise. It is a real attempt to hear the public’s views. All inputs are seriously considered before a final draft of the bill is put before cabinet.
Religious leaders’ concerns that the wording of the bill will restrict their ability to preach the word of God is something we take seriously. It is not the intention of the bill to restrict religious freedom. Equally, incitement of violence and harm against certain groups in society is not something that can be allowed.
We have seen on our continent that words can cause death and destruction. Hate speech was a major contributing factor in the Rwandan genocide, as well as the ethnic violence in Kenya before and after elections. Both countries now have laws restricting hate speech.
A good example of hate speech from a minister of religion is that of pastor Steven Anderson, who is from the Faithful Word Baptist Church in America, and is known for his hatred of homosexuals.
After the June 12 terror attack at a nightclub in Orlando, Florida, which left 49 people dead, he said: “The good news is that there’s 50 less paedophiles in this world, because, you know, these ‘ homosexuals’ are a bunch of disgusting perverts and paedophiles.” Perhaps the most shocking thing Anderson said was: “I don’t condone violence, but gays should be executed.”
It is difficult to understand how a purported Christian in the modern age can propagate such hatred when the teachings of Christ clearly emphasise the centrality of loving your neighbour as you love yourself.
Anderson was prohibited from entering South Africa by the minister of Home Affairs using powers under the Immigration Act that prohibit the admission of foreigners likely to promote hate speech. His stay in Botswana did not last very long because he was deported from that country for similar utterances.
Murdered
The calls by Anderson surely cannot be allowed. Too many gays and lesbians in South Africa have been murdered simply for being who they are – gay or lesbian.
Our constitution guarantees freedom of religion and freedom of speech, but these rights often need to be balanced against each other, and this can result in their limitation. My right to freedom of religion sometimes needs to be balanced against somebody else’s right to dignity or their right to life.
There is still much intolerance and prejudice in our country – not only on the basis of race and gender, but also on the basis of sexual orientation and on the basis of religion. For example, only two weeks ago, a pig’s snout and pig blood were placed outside the door of the Simon’s Town mosque. An imam lodged a case of crimen injuria with the police, and said it showed total disregard and lack of respect to the Muslim community.
We want to ensure the bill does not constrain the preaching of the Gospel or constrain the quoting of certain biblical verses, or the texts of any other religion, as long asit does not cross the line and become hate speech. If a person, like Anderson, says all gay people must be killed, and uses a Bible verse to motivate this, it will be hate speech.
Many will argue and say the book of Leviticus (in 18:22 and 20:13) states men who have sex with men should be put to death. No one can stop that verse from being quoted in a sermon, but that verse cannot be used to advocate harm or incite violence towards gay men.
The same chapter 20 states that children who curse their parents should be put to death, as well as people who commit adultery. Yet, nobody ever uses those verses to advocate death or harm to such people, but somehow Leviticus is always used selectively in relation to gays.
Our Constitutional Court had this to say about the relationship between religious rights and other rights: in Christian Education v Minister of Education, the issue was about the prohibition of corporal punishment in schools. The court found it was important to balance rights, and held: “There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important.
“Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.”
But they specified: “The Constitution ensures that the concept of rights of members of communities that associate on the basis of language, culture and religion, cannot be used to shield practices which offend the Bill of Rights.”
We value the views of our religious institutions and leaders, and will look closely at the hate speech provisions in the draft bill to ensure religious leaders are able to preach their views freely, even though others may find these views deeply questionable. However, such sermons cannot include any incitement to violence and harm.
Once the period for comment on the bill closes at the end of the month, the bill will be revised and again tabled before cabinet for approval for introduction into Parliament, which will also publish it for comment, and conduct public hearings for those with views on the bill to make further submissions.
Jeffery is Deputy Minister of Justice and Constitutional Development