Although a Bill dealing with hate crimes should be welcomed, one that includes a section criminalising hate speech should be viewed with suspicion because it will render meaningless several constitutionally enshrined rights — which cannot be countenanced in a democratic society.
The government has extended the deadline for comment on its proposed Prevention and Combating of Hate Crimes and Hate Speech Bill from December to January 31 2017, after considerable pressure.
The question is: Why are they so keen to rush this Bill through without giving the public sufficient time to comment on it?
The answer can be found in the very wide definition of hate speech contained in the Bill. If adopted, it could curtail other rights such as freedom of religion, belief and opinion, as well as freedom of expression.
It could also impugn the rights outlined in section 31 of the Constitution, which says: “Persons belonging to a cultural, religious and linguistic community may not be denied the right … to enjoy their culture, practise their religion and use their language.”
If there is a genuine need for additional measures to deal with “hate speech”, it can be achieved by amending the Promotion of Equality and Prevention of Unfair Discrimination Act. Our government cannot launch a co-ordinated attack on the fundamental right to free speech enshrined in our Constitution.
In this regard, already in 2010, the African Commission on Human and Peoples’ Rights “called on state parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the [Universal] Declaration [of Human Rights], and other regional and international instruments”.
This call is anchored in the realisation that the potential cost of the criminalisation of speech outweighs its benefits. Surely, the country with the most progressive Constitution on the continent cannot adopt a draconian law that will cast aspersions on our human rights commitment?
Legislation must respond to a genuine social need. Its aim must be to make society better, stronger and more just. Nothing in South Africa, in spite of its warts and blemishes, suggests that this kind of legislation is necessary, unless one begins to consider the issue of political contestation. Then one can appreciate how legislation of this kind can become a useful tool in the hands of the denizens in the Union Buildings.
Even a cursory glance at the definitions used in the Bill makes for a worrying conclusion. Courts are defenders of our rights, not persecutors of trivial matters or mundane disputes between political and other foes. If the definitions in the Bill survive parliamentary scrutiny, such legislation can easily end up as a way to settle political and personal scores.
For example, consider the word “ridicule” as used in the Bill. Ridicule can be defined as “the act of using words, gestures, images or other products of expression to evoke laughter or contemptuous feelings regarding a person or thing”. In plain language it means to make fun of something or somebody, and its synonyms are mocking, satire or sarcasm.
Under the Bill’s definition, for example, anybody making fun of President Jacob Zuma — for instance, the cartoonist Zapiro — could be guilty of hate speech, an offence that would carry a sentence of up to 10 years in prison. This is cause for concern, unless of course it is the kind of outcome this Bill seeks to achieve.
It defines “harm” as follows: “Any mental, psychological, physical or economic harm.” By so doing, it introduces the possibility of criminal prosecution on the basis of arbitrary and subjective feelings, which are not quantifiable and cannot be proven in an objective manner.
Our courts cannot be expected to waste time on exercises in absurdity, which will undoubtedly ensue if this Bill is passed. Courts will be forced to venture into the nebulous arena of ideas, opinions, personal feelings and religion. It is a field for which there is no proper scientific yardstick or legal instrument, nor should there be. Any delict or offence that could arise in these esoteric fields of individual and social contestation is sufficiently covered in existing legislation or established jurisprudence; a law such as this will do more harm than good.
The criminalisation of speech is fraught with difficulty, and can easily lead to legal abuse and persecution. In legal systems where it has been adopted, hate speech is carefully defined, even though not without difficulty or ambiguity.
In Canada, an accused will be acquitted “if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text”. No doubt this is an important qualification, without which the religious views of millions (Christians, Muslims, Jews and others) would be rendered illegal.
In addition, the Canadian code, in framing its prohibition of hate speech, also states clearly that “nothing in this section shall be deemed to interfere with the free expression of opinion upon any subject in speech or in writing”.
How the justice department can even contemplate hate speech legislation in its current form is a scary thought. At least one is comforted by the idea that it is unlikely to pass constitutional muster.
David Carolissen is the project manager for human settlements at the Breede Valley municipality. These are his own views