Do­ing more harm than good

The Star Early Edition - - OPINION & ANALYSIS - RAY MCCAULEY

Pas­tor Ray McCauley is the pres­i­dent of Rhema Fam­ily Churches and co-chair­man of the Na­tional Re­li­gious Lead­ers Coun­cil

THE PUB­LI­CA­TION of the Hate Crimes and Hate Speech Bill, on which pub­lic com­ments and sub­mis­sions are due to­day has elicited a lot of in­ter­est and con­cern from the re­li­gious com­mu­nity.

I com­mend the De­part­ment of Jus­tice for what I be­lieve to be a bona fide ef­fort to pre­vent and com­bat hate crimes and hate speech, and to cre­ate an en­vi­ron­ment where South Africans can peace­fully co-ex­ist de­spite our dif­fer­ences. Hate speech and hate crimes have no place in a so­ci­ety that up­holds hu­man dig­nity.

How­ever, sec­tions of the re­li­gious com­mu­nity (and I share their view) are con­cerned that the bill, par­tic­u­larly the hate speech com­po­nent, is de­fined so broadly that it will vi­o­late con­sti­tu­tional rights, in­clud­ing par­tic­u­larly free­dom of ex­pres­sion (sec­tion 16 of the con­sti­tu­tion) and free­dom of re­li­gion, be­lief and opin­ion (sec­tion 15 of the con­sti­tu­tion).

Not ev­ery­one in South Africa ap­pre­ci­ates the beauty of our plu­ral­is­tic and di­verse so­ci­ety and this dis­dain some­times drives peo­ple to com­mit the most heinous of crimes against those who are dif­fer­ent from them.

This re­al­ity should not lead to the cre­ation of mak­ing hate crime a sub­stan­tive of­fence as the bill pur­ports to do be­cause it might fur­ther di­vide so­ci­ety. If the cre­ation of such an of­fence is in­evitable, the rel­e­vant law must be as tight and un­am­bigu­ous as pos­si­ble.

The pro­posed def­i­ni­tion and scope of hate speech is broad and might be un­con­sti­tu­tional. Sec­tion 16 of the con­sti­tu­tion guar­an­tees free­dom of speech as a fun­da­men­tal hu­man right. In terms of sec­tion 16(2), the only speech that is not pro­tected is “pro­pa­ganda for war, in­cite­ment of im­mi­nent vi­o­lence and the ad­vo­cacy of ha­tred that is based on race, eth­nic­ity, gen­der or re­li­gion, and that con­sti­tutes in­cite­ment to cause harm.”

Com­par­ing the def­i­ni­tion in the con­sti­tu­tion and the bill, the bill is wider.

In terms of the con­sti­tu­tion, speech will qual­ify as hate speech only if it amounts to “ad­vo­cacy of ha­tred”. This im­plies more than just a neu­tral or ca­sual state­ment. It in­cludes a co­er­cive el­e­ment, de­lib­er­ate in­tent and ef­fort to con­vince an­other to adopt a par­tic­u­lar at­ti­tude or po­si­tion. It re­quires call­ing for or mak­ing a case for ha­tred, and is there­fore a higher thresh­old than merely com­mu­ni­cat­ing to some­one “in a man­ner that… is threat­en­ing, abu­sive or in­sult­ing”, as con­tem­plated by the bill.

In terms of our con­sti­tu­tion, in or­der to qual­ify as hate speech, the speech also has to “con­sti­tute in­cite­ment to cause harm”, that that there is a press­ing, or stir­ring up, of some­one to act in a vi­o­lent or phys­i­cally harm­ful man­ner.

It is im­por­tant to note that South African courts have recog­nised that how­ever of­fen­sive a state­ment may be, it does not rise to the level of pro­scribed hate speech un­til it also tends to “in­cite­ment to cause harm”. This is where one feels the bill might be go­ing be­yond the bound­aries set by our con­sti­tu­tion.

Also, in terms of the con­sti­tu­tion, the “ad­vo­cacy of ha­tred” must be based on one of the listed grounds, namely race, eth­nic­ity, gen­der and re­li­gion. This list is a closed list, and does not ex­tend to other grounds. In terms of the bill hate speech is not re­stricted to the listed grounds and ap­pears to be a ran­dom se­lec­tion, in­clud­ing some of the pro­hib­ited grounds in the con­sti­tu­tion while leav­ing out some oth­ers, and ad­di­tion­ally in­clud­ing some other ar­bi­trary char­ac­ter­is­tics.

The in­clu­sion of the words “and which demon­strates a clear in­ten­tion… to in­cite oth­ers to harm… or stir up vi­o­lence against, or bring into con­tempt or ridicule” in the bill’s def­i­ni­tion is prob­lem­atic.

From whose point of view would it be judged if there was a clear in­ten­tion to ridicule the vic­tim – from the speaker’s point of view or from the lis­tener’s? Or sub­jec­tively, from the lis­tener’s point of view?

The use of the word “in­ten­tion” is prob­lem­atic, as in­ten­tion in the broad sense of the word in­cludes “le­gal in­ten­tion” (do­lus even­tu­alis), that is ob­jec­tively fore­see­ing the pos­si­bil­ity that an act might have a cer­tain con­se­quence that, for ex­am­ple, could cause some­one to feel threat­ened, abused, in­sulted, ridiculed or brought into con­tempt. Should a pas­tor say from the pul­pit that pros­ti­tu­tion, ac­cord­ing to the Bi­ble, is sin­ful, that may well qual­ify as hate speech.

The ar­gu­ment would be that the pas­tor should have fore­seen the pos­si­bil­ity that a pros­ti­tute might have been in the church, he saw that it might have of­fended her and he none­the­less said that pros­ti­tu­tion was wrong. He thus com­mit­ted hate speech based on “oc­cu­pa­tion or trade”, and if found guilty, could be pun­ished with a fine and/or up to three years’ im­pris­on­ment.

That could lead to all kinds of un­in­tended con­se­quences and po­larise so­ci­ety even fur­ther.

No one is say­ing pros­ti­tutes should be hated and not wel­come in church. God for­bid. The gospel would have no rel­e­vance on Earth. In fact, Je­sus showed mercy and love to two women in the Bi­ble who could eas­ily have fit­ted the la­bel “pros­ti­tute”. Oth­ers in his gen­er­a­tion, es­pe­cially the su­per holy Pharisees, were scan­dalised that he should in­ter­act with such women.

The other area of con­cern is how the De­part­ment of Jus­tice is rush­ing the pro­cesses. The tight dead­line that has been given for pub­lic com­ments on such a con­tentious is­sue has not gone down well with many re­li­gious lead­ers and I hope the de­part­ment will take note on th­ese se­ri­ous con­cerns.

DEAD­LINE: Jus­tice Min­is­ter Michael Ma­sutha dis­cusses the Hate Crimes and Hate Speech Bill. The de­part­ment isn’t al­lo­cat­ing enough time for pub­lic in­put on the bill, says the writer.

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