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01/03/2018 13:29 SAST | Updated 01/03/2018 13:29 SAST

Hate-Speech Bill: A Threat To Democracy In South Africa

South Africa has a hate-crime problem that urgently needs to be dealt with – but the "hate-speech bill" is not the vehicle to accomplish this.

South African Constitution

Over-eagerness with hate-speech bill is ill-fated

On February 8, 2018, the Hate Crimes Working Group (HCWG) published a petition, widely covered in the media, decrying the fact that the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill (the hate-speech bill), published for public comment in late 2016, is being delayed.

While the HCWG's and human-rights activists' impatience can be understood – South Africa has a hate-crime problem that urgently needs to be dealt with – the hate-speech bill is not the vehicle to accomplish this. On the contrary, it may lead to tyranny that South Africa has only ever known under the Suppression of Communism Act of the apartheid era.

In the petition to the justice department, HCWG writes that the "bill is ready but our Minister of Justice, Michael Masutha, is in no rush to move it forward. [We must] urge South African authorities to stop stalling and push forward the country's hate crimes bill". This over-eagerness bodes ill for constitutionalism and the rule of law, and caution must be advised.

The bill has irredeemable qualities that pose an existential threat to the continued existence of democracy.

The proposed legislation provides that you commit the crime of "hate speech" by simply "insulting" someone with the intention to bring them into "contempt", or by ridiculing them based on anything from "belief" or "occupation" to the contentious elements like race, gender, religion, etc. This could then condemn you to prison for up to three years for a first offence, and for ten years if you do it again.

In other words, by insulting the president with the intention to ridicule him based on his occupation, you are committing a crime under this proposed law. Alternatively, by mockingly referring to lawyers as bloodsucking parasites, you similarly invite the wrath of the speech gestapo.

This bill effectively abolishes freedom of expression, entirely, in South Africa.

Not only does the text of the bill not make sense, but in fact it defeats itself under the guise of protecting the element of "belief". If you say, for instance, "Racists are scum and should be ostracised," you are committing hate speech, according to the bill, as racism is a belief and belief is protected.

The National Prosecuting Authority will then be placed in the awkward position of having to institute charges against an anti-racism activist, because the country's supposed anti-racism law obliges it to. If they do not institute charges, arbitrariness will be the order of the day.

If a teacher accuses a pupil of being a "bad learner" who should study harder, they are committing hate speech. If a feminist says Afrikaner culture is patriarchal, they are committing hate speech. If a frustrated niece says her uncle is an annoying old man, she is committing hate speech. If a social activist says capitalists are greedy, they are committing hate speech. The list goes on. This bill effectively abolishes freedom of expression, entirely, in South Africa.

The only silver lining is that there is no hope for the bill to survive its inevitable journey through our court system if it becomes a law. No judge is going to find that it complies with the section 36 limitations clause in the Constitution, as it is framed in abnormally wide language that would yield perverse and irrational results. But we must remain concerned that legislation of this nature is on the agenda in our constitutional democracy at all.

The Suppression of Communism Act, later known as the Internal Security Act, that saw so many anti-apartheid activists jailed for alleged "communist" propaganda, is the closest equivalent to the hate-speech bill in South African history. But the hate-speech bill's provisions, as they currently stand, will lead to far more tyrannical outcomes than the apartheid law ever could hope to achieve.

The enactment of the Constitution brought an end to the idea that government could control expression in such a draconian way. But clearly, not everyone is convinced that a strong respect for constitutionalism and individual liberty is what SA needs.

If the government were to press ahead with it, it would be undermining the democratic principle of public participation that demands government be responsive to the views of the public.

The fact that solutions to hate speech already exist in South Africa is needlessly ignored. Civil penalties under the Promotion of Equality and Prevention of Unfair Discrimination Act, as well as the doctrine of crimen injuria, already punish those who unduly violate the dignity of others to an extent that deserves the recognition of law. The bill is thus not only tyrannical, but also unnecessary.

The hate-speech bill has been delayed – and hopefully shelved – for good reason. Civil society organisations concerned about freedom of expression and liberty in general almost universally came out against the bill. If the government were to press ahead with it, it would be undermining the democratic principle of public participation that demands government be responsive to the views of the public.

The bill in the form it was published in 2016 has no place in a democratic South Africa and should not be tabled in Parliament. It should not exist in the first place. Instead, the government should go about what it originally said it would do: draft an anti-hate crimes law. This can be done without in effect repealing constitutional freedoms and condemning South Africa to a totalitarian future.

Martin van Staden is legal researcher at the Free Market Foundation and is pursuing a Master of Laws degree at the University of Pretoria.