The ongoing project of creating an equal society in South Africa will be scuppered by the recent proposal to criminalise hate speech. Given our history, many South Africans hold deep-seated prejudices, which they express through hateful and harmful words (we will refer to these people as the Jon Qwelanes and Penny Sparrows of the world).
The department of justice has recently proposed making the Qwelanes and Sparrows into criminals because they insult and advocate hatred of gay people and black people, respectively. This proposal will turn many ordinary South Africans into criminals.
Reacting in anger, many people would understandably like to see such people “rot in jail”, but criminalising speech does not make sense and is undoubtedly unconstitutional.
The Prevention and Combating of Hate Crimes and Hate Speech Bill was recently published for comment. The Bill rightly includes a more integrated and targeted response to prejudice-motivated crimes but wrongly seeks to criminalise hate speech. There is already a legal mechanism, in the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act), which enables anyone to hold the Sparrows of the world to account by seeking constructive civil, not criminal, redress. The possibility for a person who is hurt or harmed by hate speech to approach an equality court for, for example, a public apology or damages is at the heart of the possibility of a more equal and just society. Through legal process, perpetrators are made to face the targets of their insult, and herein lies the potential for the restoration of dignity. It is in the facing, rather than in the jailing, that justice and equality might be advanced.
To challenge hate speech more effectively we need, among other social interventions, a rigorous, expansive and systematic use and application of the Equality Act. To date, the equality courts and Chapter 9 institutions have been underused, and so there is a need for these avenues of recourse to be made more accessible and meaningful for those at the social and economic margins, in particular.
On March 6, the Equality Act will be put to the test in the Johannesburg high court in a case between the South African Human Rights Commission (SAHRC) and the real-life Qwelane. It is well known that he wrote an article, published in the Sunday Sun in 2008, titled “Call me names, gay is not okay”, in which he declared his support for Robert Mugabe’s bigoted view of homosexuality as inhuman, stated that being gay is unnatural and likened same-sex marriage to bestiality.
The article was met with widespread condemnation for its hateful and prejudicial content. Following a flood of formal complaints, the SAHRC approached the Equality Court to seek a public apology and damages from Qwelane on the grounds that the contents of the article constitute prohibited hate speech in terms of section 10(1) of Equality Act.
Qwelane then launched a constitutional challenge of the relevant provisions of the Equality Act.
The Psychological Society of South Africa (PsySSA) entered the case as amicus curiae, arguing that the hate speech provision in the Equality Act is constitutional and ought to be understood within its proper psychological, social and constitutional context. This includes cognisance of the tangible consequences of hate speech on the lives of those it targets, and the nature and extent of the harm it inflicts.
PsySSA contends that the hate speech provision in the Equality Act is constitutional in that, although it limits the right to freedom of expression under section 16 of the Constitution, it does so in a manner that is reasonable and justifiable. Part of what makes the Act reasonable and justifiable is that it does not criminalise Qwelane’s hate speech. The civil remedy it gives the LGBTIQ (lesbian, gay, bisexual, transgender, intersex and queer) community, through the SAHRC, balances their rights to equality and dignity, on the one hand, with Qwelane’s right to freedom of expression on the other.
In its preamble, the Equality Act recognises that ours is a society plagued by “systemic inequalities and unfair discrimination that remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy”. As such, the Act is concerned to remedy the pernicious effects of discrimination on targeted groups and on society at large, and provides a range of innovative and flexible civil remedies to do so. This is an approach geared to restoring hate’s damage to dignity.
Such civil remedies are preferable to criminal ones precisely because they provide justice, in the face of another’s hateful speech, with the potential to repair and reorganise social relationships between ordinary people.
Undoing legacies of violent oppression, fuelled by inequality, requires the restoration of the equal dignity of those who have been systematically marginalised on the basis of their race, gender and/or sexuality, and who continue to face discrimination today. This includes LGBTIQ people, the majority of whom are black and face the intersecting oppressions of racism, homo/transphobia and, in some cases, xenophobia.
Our constitutional democracy and its foundational values and institutions offer a line of defence against the violent prejudice of both word and deed. Speech that is expressed in the name of freedom but that is contingent upon the denial of the equal dignity of another cannot continue unfettered.
Recent cases of racist hate speech, such as that in which the real-life Sparrow likened black people to animals, have been dealt with swiftly by our courts — and rightfully so. Qwelane’s conduct over the past eight years shows he has refused to engage with the harm his speech has caused or to provide the relief the SAHRC seeks.
Qwelane’s trial begins on March 6 in Johannesburg and the hope is that he will then face the LGBTIQ community and be made to understand the hurt and harm he has caused.
The trial offers the possibility that the Equality Act will be used as it was intended: to advance the transformation of our society, both legally and socially, towards one in which difference is embraced rather than vilified or erased.
Melanie Judge is an adjunct associate professor in law at the University of Cape Town and an adviser to the Psychological Society of South Africa . Kerry Williams is a partner at Webber Wentzel and PsySSA’s attorney.