On the last day of this month, the first call for public comments on the Prevention and Combating of Hate Crimes and Hate Speech Bill will come to a close and the public will have had its first real chance to see and shape this potentially game-changing piece of policy.
For civil society, more than a decade of protest, lobbying, advocacy and collaboration culminates in this Bill and a difficult process of introspection and strategy is required at this final hurdle. Civil society, and the Hate Crimes Working Group in particular, has been deeply involved in the initial process of developing this Bill. The spirit of collaboration between civil society and the department of justice during this time exemplifies how the parties can work together without sacrificing their individual aims.
The new Bill creates some much-needed protection for groups that are vulnerable to targeted crimes because of their race, sexual orientation or gender, national origin, occupation and disability. This should be welcomed widely by civil society as it fulfils three essential necessities in combating these types of crimes.
The first is the policing and prosecution of these crimes, where the Bill creates obligations for the police, National Prosecuting Authority and others to identity hateful motives in crimes and investigate and prosecute on this understanding. This is vital in a country where the police often fail to understand, recognise and thus investigate hateful motives in crimes against lesbian, gay, bisexual, transgender and intersex (LGBTI) people and foreigners. This is partly to blame for the outrageously low rates of conviction, particularly relating to xenophobic crimes.
The second aspect relates to monitoring and reporting, where an unprecedented obligation has been created to report and monitor crimes with a hateful motive. These statistics will form part of the national crime statistics and help the state and civil society understand more fully the landscape of targeted violence, and thus be able to start tackling the prevention and combating of these crimes.
Third, the Bill’s focus on prevention should be welcomed because it creates cross-cutting mandates for various departments — health, labour, home affairs, higher and basic education and others — to create holistic programmes relating to the prevention of hate crimes. This includes internal programmes to train and sensitise public sector staff, and ensures that where departments interact with the public they are aware of their duty to prevent and combat these crimes.
There is much to be commended in this Bill but there is also much of which to be cautious. Issues include the lack of discretion for presiding officers relating to sentencing and other matters, as well as concerns about provisions about hate speech.
The department of justice announced early last year that it would include hate speech in the Bill and has stated publicly that this is owing in part to the racist outbursts South Africa witnessed over the 2015 holiday period. That Penny Sparrow and others seem to have precipitated such a major policy shift is worrying, because it suggests the state did not consider hate speech a problem up until that point. Cause for further concern is that a decade-long process of deliberation has been interrupted by a knee-jerk and political reaction to what is the deep and complex problem of racism and white supremacy in South Africa.
The desperate reaction to the outcry that followed this racism shows in the hasty construction of the hate speech provision in the Bill. The interpretation of hate speech is broad to the point of futility — in what constitutes hate speech and how it can be inflicted — and has been wedged into an otherwise useful and important Bill without the kind of consultation that had strengthened the Bill up to that point.
The definition of hate speech in the Bill contains two parts. Part one refers to the communication of “hate” itself and qualifies this as any person who communicates to one or more people in a manner that advocates hatred or is threatening, abusive or insulting. Part two relates to the intention of the communication in whether it demonstrates a clear intention to incite others to harm a person or group of persons, or to stir up violence or bring into contempt or ridicule any person or group of persons.
To qualify, both parts must be present and this does, for the most part, cohere with our current understanding of harmful speech in that it may lead to violence. But this expanded definition would also consider insulting speech that intends to ridicule a person or group of persons as a criminal offence.
Although the Promotion of Equality and Prevention of Unfair Discrimination Act has made hate speech illegal since 2000, this remains a civil rather than criminal remedy, and one that South African jurisprudence has still not fleshed out despite two decades of protective constitutional provision.
Our Constitution’s Section 16 Right to Freedom of Expression is constrained by a provision on hate speech that automatically limits the right. Yet both of these differ from the Bill proposals, first because they are not criminal law responses and, second, because (definitional uncertainty aside) they require the hateful speech to be linked to violence or its promotion.
As the Bill is currently written, it is an unconstitutional limitation of freedom of expression as set out in Section 16 and not sufficiently connected to the good it wishes to achieve and would seek to counter. It may fall short of the test in the “limitations clause” in Section 36 of the Constitution. This test determines whether a right can be limited based on, among others, the importance of the right, the importance of the aim of the limitation and the manner it could otherwise be achieved.
Civil society is then faced with a difficult choice: Does it advance the Bill, even with this poison pill provision, or does it oppose its inclusion and perhaps risk scuppering the entire Bill?
This does not mean that hate speech is not a problem or that there shouldn’t be severe consequences for it; the issue here is how we wish to tackle it and how we view the role of the state and criminal justice system in this fight.
The issues facing civil society fall broadly into three areas.
The first is a rejection of politicisation of the issue. The state wishes for civil society to be either service providers or constructive partners, where “constructive” is often interchangeable with “uncritical in public”. This leaves civil society struggling with a dilemma of co-operation and potential co-option, or the possible inability to influence from outside of this potentially toxic relationship.
The state has taken a hate crimes process spanning years and combined it with the immediately current and difficult problem of hate speech, and attempted to “fix” it in one fell swoop. As civil society, our role is to reject this as political manoeuvring and to demand that the state make all its policy decisions on a considered basis, and not treat vulnerable groups and age-old problems as a political football.
Second, the potential erosion of rights must be confronted head-on. While some responses to the Bill have been predictable and alarmist, there is a justifiable concern in the way that this hate speech provision was formulated and the way it found itself in the Bill.
This Bill cannot be used, for example, to remove the rights of satirists to attack politicians, mostly because the courts will probably strike down any interpretation of the Bill in that manner as unconstitutional. The best-case scenario is, however, not a good enough reason for the passage of legislation that potentially endangers our right to freedom of expression.
The hate speech provision is a problem in and of itself, but is exceedingly worrying when viewed in the context of a state that is growing increasingly uncomfortable with pointed criticism and one that joined just seven other countries, including China, Venezuela and Russia, in voting against a United Nations resolution that would have sought to protect space for civil society.
Finally, we must ask if we are backing a false remedy to serious problems.
Many are uneasy about a criminalisation of speech and a role for the state in policing speech. To be clear, where speech can be seen to incite violence, there is a clear mandate to stop that speech. But where the speech is insulting or causes discomfort, the role of the criminal justice system, and by extension the state, is more debatable. Could more benefit perhaps exist in giving real strength to our equality courts and empowering more people to protect their rights in this manner?
Reconciliation is the subject of intense debate as a new generation of young, black South Africans feel they are failing to see the benefits promised by democracy and continue to live with the scars — old and more recent — of racism. With that in mind, it should be clear that we do not yet fully understand how to tackle racism, or homophobia, transphobia, xenophobia and others. But it is doubtful that criminalising speech and jailing those who offend will have the desired effect.
The role of the criminal justice system and the department of corrections in rehabilitating offenders is already wholly neglected. Our system overflows with prisoners awaiting trial, and convicted petty criminals and serious offenders who are being denied some of their most basic human rights but also their chance to rehabilitate and rejoin their communities.
With this in mind, it is not clear how the state envisions the role of the already overburdened criminal justice system in our ongoing attempts to tackle racism and other forms of supremacy and discrimination. It should be making civil society uneasy, to say the least.
The choices available to civil society are stark. They range from smaller decisions about how we tweak this Bill, to extract the most utility from it, to larger decisions about the very nature of our democracy, freedom and the role of the state
This does not mean the strategy of constructive engagement should be abandoned. There is important work to be done with many of the committed people in our civil service who maintain the machinery of government. But this work and these relationships should not overshadow the oversight that civil society should maintain. Now is the time for a co-ordinated and clear voice that provides advice and acts as a counterbalance to the state rather than being a mere rubber stamp or tool for engagement.
Matthew Clayton is the research, advocacy and policy manager at Triangle Project, an LGBTI Human Rights organisation based in Cape Town, and secretary of the Hate Crimes Working Group.