Pro­posed Hate Speech Bill is Or­wellian piece of stu­pid­ity

Weekend Argus (Saturday Edition) - - FRONT PAGE -

IT IS telling, al­beit bizarre, that the pro­posed leg­is­la­tion against “hate speech” orig­i­nates from within the ad­min­is­tra­tion of a pres­i­dent whose favourite ditty is a lib­er­a­tion era war song with the re­frain “bring me my ma­chine gun”.

And that the leg­is­la­tion is sup­ported by an ANC that pre­vi­ously has ar­gued pas­sion­ately that to chant “Kill the Boer, kill the farmer” is not only a lyri­cal vi­gnette from our South African his­tory but that it is de­serv­ing of pro­tec­tion in per­pe­tu­ity.

As a jour­nal­ist, on this I find my­self in rare agree­ment with these ear­lier it­er­a­tions of Pres­i­dent Zuma and the ANC. Such songs are relics of our past and while a white Afrikaner farmer might find them of­fen­sive and even threat­en­ing, there is not a shred of ev­i­dence that their pub­lic per­for­mance has ever in­cited ac­tual vi­o­lence.

We live in a rough neigh­bour­hood and have a trou­bled his­tory. White­wash­ing the un­palat­able past might dis­guise it, but does not make it go away.

While it is un­doubt­edly in­sen­si­tive and so­cially po­lar­is­ing to harp upon our bloody his­tory, it should not be con­sid­ered hate speech un­less it is used to mo­bilise one group to act vi­o­lently against an­other. Ro­bust or even crude lan­guage, satire, mock­ery and the right to of­fend are all im­por­tant as­pects of democ­racy.

In­deed, they are some­times the only tools that po­lit­i­cally marginalised groups have to strike back at the pow­er­ful. To want to for­bid their use on the vague jus­ti­fi­ca­tion that they may in­cite “hate” will smother the free speech that lu­bri­cates a free so­ci­ety.

Which is why the draft Preven­tion and Com­bat­ing of Hate Crimes and Hate Speech Bill that has just been gazetted for com­ment is so prob­lem­atic. It is, to start with, un­nec­es­sary.

There is al­ready an ar­ray of long-es­tab­lished laws that can be used to deal with a demon­stra­ble in­cite­ment to harm. There is also civil leg­is­la­tion that of­fers re­dress against defam­a­tory slurs.

Also, there has been in op­er­a­tion in South Africa for the past 16 years the Pro­mo­tion of Equal­ity and Preven­tion of Un­fair Dis­crim­i­na­tion Act (Pepuda). It pro­hibits un­fair dis­crim­i­na­tion, hate speech and/or ha­rass­ment on the grounds of “race, gen­der, sex, preg­nancy, fam­ily re­spon­si­bil­ity or sta­tus, mar­i­tal sta­tus, eth­nic or so­cial ori­gin, HIV/AIDS sta­tus, colour, sex­ual ori­en­ta­tion, age, dis­abil­ity, re­li­gion, con­science, be­lief, cul­ture, lan­guage and birth”.

In terms of that act, hate speech is de­fined as words that “must be rea­son­ably con­strued to demon­strate a clear in­ten­tion to be hurt­ful, harm­ful or to in­cite harm and to pro­mote ha­tred”.

Al­leged of­fend­ers are tried in the Equal­ity Courts and there is a con­sid­er­able range of sanc­tions that can be ap­plied, in­clud­ing cor­rec­tive com­mu­nity ser­vice and fines.

Un­der this leg­is­la­tion, Penny Spar­row, who called black New Year’s Day rev­ellers “mon­keys”, was slapped with a R150 000 fine.

On the other hand, Julius Malema, now leader of the EFF but then leader of the ANC’s Youth League, got only a slap on the wrist and had to pay part of the court costs, af­ter be­ing found guilty of re­peated per­for­mances – along with en­thu­si­as­tic shoot­ing ges­tures – of the “Kill the Boer” song.

At the time, the ANC said that it was “ap­palled” by the judg­ment. “The rul­ing flies against the need to ac­cept our past and to pre­serve our her­itage as an or­gan­i­sa­tion and as a peo­ple,” said spokesman Jack­son Mthembu.

As is ap­par­ent from the cases in­volv­ing Spar­row and Malema – and the dif­fer­ing re­sponses of our gov­ern­ment to them – what is “hate­ful” is more of a po­lit­i­cal con­struct, sub­ject to the va­garies of so­cial fash­ion and po­lit­i­cal cor­rect­ness, than it is a le­gal one.

Yet the new bill goes fur­ther than Pepuda in that it crim­i­nalises hate speech.

This a dan­ger­ous change, in that it moves away from Pepuda’s ap­proach of cor­rec­tive jus­tice to one of re­trib­u­tory jus­tice. Chillingly, the bill, if passed, opens the door to am­bi­tious pros­e­cu­tors who are close to the gov­ern­ment of the day tar­get­ing those who are out of po­lit­i­cal favour with crim­i­nal sanc­tions for neb­u­lous thought crimes.

The new bill’s def­i­ni­tion of what is a hate crime is lu­di­crously wide. Any act of ad­vo­cat­ing ha­tred and “con­tempt or ridicule” of any­body or any group, will be a crime.

So a nasty tweet, a stupid Face­book com­ment, or a barbed news­pa­per car­toon will con­ceiv­ably bring down on its per­pe­tra­tor the full weight of the crim­i­nal law.

The only cheer­ing as­pect to this Or­wellian piece of leg­isla­tive stu­pid­ity is that if it is passed by Par­lia­ment, it will be chal­lenged in the Con­sti­tu­tional Court and al­most cer­tainly be found to con­flict with the Bill of Rights.

So let’s not waste time; dump it now.

Fol­low WSM on Twit­ter @TheJaun­dicedEye

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