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Hate crimes and hate speech bill is a bad law that is bad for our democracy

George Michalakis
By George Michalakis
16 May 2023
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Under this law, there is little doubt that satirists such as Zapiro and Brett Murray would have been jailed for works such as the ‘Lady Justice’ cartoon or ‘The Spear’ during the Zuma era. Uncomfortable opinions and inconvenient truths will be censored, driven underground and fester there.

When a bill before Parliament is called “The Prevention and Combating of Hate Crimes and Hate Speech Bill”, most people would expect the Democratic Alliance to support it wholeheartedly. After all, decent liberal people obviously abhor hate crimes and hate speech.

The DA is no exception. At the same time, we are very much alive to the way autocratic governments worldwide have falsely used the label “hate speech” to outlaw any speech they don’t like, or that offends prevailing sensibilities and cultural norms.

In such cases, bills that purport to prevent “hate speech” turn into censorship laws and tools of political oppression. This is what we believe is the case with the Prevention and Combating of Hate Crimes and Hate Speech Bill. And it is why the DA refers to it as the “censorship bill”.

The bill aims to criminalise hate speech but fails to define hate. It poses a serious risk to the foundational value of freedom of expression, which is not just one among many rights protected in our Constitution. It is the foundation upon which so many other rights depend.

These include the right to freedom of conscience, religion, thought, belief and opinion; the right to peaceful protest; freedom of association and so on. The Constitution, in section 16(1)(b) explicitly states that the right to freedom of expression also includes the freedom to receive and impart information or ideas.

Free speech is the engine of social progress — it is how we introduce new ideas and thoughts into society and collectively debate these, driving change and social progress. Just think of gay rights. If people had not used their freedom of speech to advocate for these rights (which not too long ago was considered a highly offensive and harmful thing to do), the sexual orientation of LGBTIQ+ people would still be defined as a crime.

In liberal constitutional democracies, the concept of hate speech exists and is very clearly defined. Section 16(2)(c) of the South African Constitution defines hate speech (that is not protected by the right to freedom of expression) as the advocacy of hatred that is based on race, ethnicity, gender or religion, AND that constitutes incitement to cause harm.

In other words, the speech must not only stir up hatred in people against people belonging to a certain race group, for example. It must then tell them to go do something about it. Internationally, it is also understood that such speech should also be the cause of the harm suffered. In other words, it must have a direct causal link to the subsequent violence and harm.
To find someone guilty of the crime of hate speech under the current bill, the state will not need to prove that an expression caused any actual harm.  It merely has to be judged as being potentially harmful or inciting harm, which could result in a person being convicted, jailed for up to eight years, and ending up with a criminal record.

Deputy Minister of Justice John Jeffery openly promoted the removal of the “causal link” requirement when he addressed the Justice Portfolio Committee on 4 November last year.

Free societies protect offensive speech (and even highly offensive speech). Even our own Constitutional Court has ruled that unpopular or even offensive beliefs should be allowed in the public realm.

Of course, people who say highly offensive things can face criminal charges for crimen injuria (like Vicki Momberg did, for example) and be sentenced to prison.

We also have the Riotous Assemblies Act, criminalising incitement to commit an offence, and the Intimidation Act, prohibiting unlawful coercion.

In terms of civil law, the recently amended Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), opens the door for citizens and organisations to sue each other for certain forms of harmful speech.

The “censorship bill” currently before Parliament, goes much further. It seeks to widen the ambit of what would be deemed hate speech (compared to Pepuda) and then criminalise this, and opens the door to an eight-year jail term. 
In the current climate of widespread offence-taking, this should be a wake-up call to us all, especially as the bill does not define “hate”.  It focuses on “harmful” speech with a vague and wide definition that includes concepts such as “emotional” harm (hurt feelings) and the indefinable notion of undermining social cohesion.

The adjudicators of this crucial question will typically be the lower courts, such as the regional courts, which will have to determine whether speech could potentially be harmful. It is easy to predict how fundamental constitutional rights will be violated in this process, and what it will cost those convicted of this crime to finally be exonerated in the Constitutional Court.

Under this law, there is little doubt that satirists such as Zapiro and Brett Murray would have been jailed for works such as the Lady Justice cartoon or The Spear during the Zuma era. Uncomfortable opinions and inconvenient truths will be censored, driven underground and fester there, instead of creating the opportunity for open debate.

Of course, the ANC will use the DA’s opposition to this bill to paint us, absurdly, as proponents of “hate crimes” and “hate speech”. In fact, John Jeffrey fired the first shots last year when he predicted that the first people to be found guilty in terms of this bill will be the DA’s supporters.

The ANC has warned us, and we should take them seriously: this bill is a political tool, covered by a fig-leaf title that masks its true intentions.
It is also a cause for great concern that the Cabinet may make regulations which, if not approved within 60 days by Parliament, are automatically deemed to be adopted and have the force of law. The minister can thus, during a long recess for example, or for delays deliberately orchestrated by the ruling party, push through even more draconian and restrictive regulations.

Fundamentally, this is a bad law that is bad for our democracy.

The DA knows that we still have a long way to go to create an open, free and fair society for minorities defined in terms of religious beliefs, gender identity, sexual orientation and race. We strive for an inclusive and fair society in terms of our core values of freedom, fairness, opportunity and diversity. However, it will not be realised through draconian ANC laws, propagated with a hidden agenda.

Acting against hate crimes and hate speech, properly defined in the Constitution, and existing law, is correct. But to stifle healthy debate, independent thought, ideas and opinions is not only dangerous. It is a threat to social progress.

You cannot legislate morality according to the norms and standards of a particular era. It is dialogue and mutual understanding that will create a safer, more open society.

All of us who believe in basic individual rights should be able to rally to the defence of freedom of opinion and debate, and the right to argue and campaign for a better society. DM

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