Doing more harm than good
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.