South Africa’s 1994 “miracle” ended centuries of legislated racial discrimination. But the heads and hearts of South Africans were not miraculously wiped clean in that seminal moment. The racism constructed during those centuries and passed down through them is still very much a part of our society today, along with the racist acts and speech it provokes. The question we must now debate as a nation is: how do we navigate our way towards the non-racial society envisaged by our Constitution?
Unquestionably, we must deal with the structural conditions that allow race-based inequality to persist: unequal access to education, earning and ownership opportunities. The progress we make on this long term project will steadily chip away at the racism that is so entrenched in our society. But we cannot just wait for hate-fueled incidents to slowly diminish over time while we claw our way to a more just society. Through effective legislation, we can decisively prevent and combat harmful acts and speech fueled by racial and other forms of discrimination.
Almost all South Africans agree that in the interest of social solidarity, human dignity and nation building, we have to draw a line between freedom of expression and hate speech. The ANC’s Prevention and Combating of Hate Crimes and Hate Speech Bill (“Hate Crimes Bill”) currently making its way through Parliament supposedly endeavours to do just that but draws the line in the wrong place. In its purported attempt to deter racism and other forms of discrimination it oversteps the mark, venturing – whether by mistake or design – into the dangerous and unconstitutional realm of censorship and authoritarianism.
The DA has produced an amendment bill which seeks to strengthen existing legislation to “give it teeth”. It will be tabled before Parliament within the next month and then released for public comment and consideration. It is a practical and constitutional piece of legislation that we believe will be effective in tackling all forms of hate speech in South Africa. Critically, it achieves an appropriate balance between promoting freedom of expression and deterring hate speech.
Freedom of expression is a cornerstone of open, democratic societies. Its suppression through censorship was one of the Apartheid government’s most powerful tools. The free and open exchange of ideas is a right enshrined in section 16 of our Constitution, offering us protection against any government that would put the narrow interests of a powerful elite over the national interest.
However, hate speech undermines the right to dignity enshrined in section 10 of our Constitution. Our country comes from a place of division and inequality based on race, and it is our duty as South Africans to rid our country of racial discrimination and intolerance. Moreover South Africa, as laid out in our Constitution, aspires to an exceptionally high standard of social equality: aversion to discrimination based not only on race but also on differences such as sex, gender, language, culture and disability must be set as our norm.
Neither the right to free speech nor the right to dignity was protected or upheld before 1994. It is therefore crucial that we find a reasonable and workable balance between these two fundamental but sometimes contradictory claims. This is why section 16 of our constitution specifically excludes “advocacy of hatred that is based on race, ethnicity, gender or religion, and constitutes incitement to cause harm”. And it is why section 36 of our constitution provides for a limitation of our rights within reason.
On these grounds, legislation already exists to combat hate speech, both in common law (through crimen injuria) and in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) – also known as the “Equality Act”. But there is absolutely no doubt that more needs to be done to curb hate speech in South Africa.
However, the ANC’s proposed Hate Crimes Bill is not the answer – it fails to pass the test of good law in an open, democratic society. For one thing, a large portion of it is already covered by this existing legislation and is therefore unnecessary. For another, the portion that is not redundant overcorrects. It goes well beyond the limitation of rights in the Constitution, and will likely be struck down by a court of law.
One source of this overreach is its classification of speech as a crime if it is “hateful, insulting, threatening or abusive and incites harm, violence, contempt or ridicule on the basis of race, gender, sex, sexual orientation, intersex, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade” (my emphasis).
By criminalising hate speech that provokes “contempt or ridicule”, it reaches well beyond constitutional limitations and international best practice placing ordinary free speech – especially by comedians, cartoonists, opposition politicians, religious leaders and people with a wicked sense of humour – in dangerous territory where it does not belong. It will likely lead to a proliferation of frivolous cases, placing unnecessary pressure on our already over-burdened judicial system. The inclusion of “occupation or trade” is especially bizarre and, like many other aspects of the Bill, is fraught with potential unintended consequences.
But it goes even further, making the distribution – including electronically – of another person’s hate speech a crime, regardless of whether or not it constitutes an endorsement; and making an offence of “attempted” free speech, criminalising even our thoughts. George Orwell would be having a field day.
These are not distinctions which should be taken lightly by South Africans. The punishment for such hate speech is three to ten years imprisonment. This is arguably unconstitutional because the same end – to deter and combat hate speech – can be achieved in far less restrictive ways.
The DA’s bill strengthens the current legislation and the Equality Court. Importantly, it broadens the definition of hate speech and incitement to genocide – and provides for more commensurate punishment. It passes the test of good law and is consistent with our Constitution and international best practice. And it sets a high standard for acceptable social norms, one which will move South Africa forward in our pursuit of a free and fair society. We have submitted our bill to Parliament and it will be released soon for public comment. I urge all South Africans to support it.