OpEds
With rights come responsibilities
Corrective rape and brutal murder. Vigilante groups harassing pregnant women and children outside government hospitals. Homes and businesses, hopes and dreams, set ablaze.
These horrific acts are just some examples of the violence and persecution facing members of the LGBTIQA+ (lesbian, gay, bisexual, trangender, intersex, queer, asexual) and refugee, migrant, and asylum seeker communities in South Africa. There has been an alarming escalation in incidences of hate in our country, indeed in the world. In South Africa, entrenched attitudes of racism remain while the epidemics of homophobia, transphobia, and xenophobia run rampant. Each day, lives are in danger.
While the Prevention and Combating of Hate Crimes and Hate Speech Bill currently working its way through our parliamentary process won’t be a magic wand making these horrific forms of entrenched bigotry in our society disappear completely, its passing will be a symbolic step in the fight against all forms of hate in our country. The Bill, while certainly not perfect, will send a strong message to all levels of society that racism and discrimination cannot be tolerated.
The Bill will do several things: it will create the new criminal offence of a “hate crime” and “hate speech” and make rules for how these crimes will be punished in terms of the criminal laws in South Africa; and it will create legal obligations on the state to prevent, combat, gather, and record data on hate crime and hate speech.
Critics of the Bill have been vociferous. Some argue that South Africa already has laws on its books that address hate and indeed, we have the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and bodies such as the South African Human Rights Commission and the Equality Court in place. The difference between PEPUDA and the Bill is that the former recognises these crimes as civil offences, which have proven to be insufficient in prosecuting hate. Our Chapter 9 institutions are buckling under a lack of capacity and resources to address incidences of hate. It can take years and thousands of rands in legal fees, time, and money not available to most South Africans, to utilise these tools. This is something civil society has asked for the Bill to address urgently.
Another argument against the Bill is that it will inhibit freedom of speech and religion, curtailing what is preached in pulpits, and chilling criticism of the government. These concerns have been taken seriously by legislators. The Bill says a hate crime is when a person commits a criminal act that is already a crime in our law, while motivated by hate, prejudice, or intolerance for certain kinds of people. The Bill states that “hate speech” is when a person intentionally publishes, shares, or promotes anything that a reasonable person could interpret as wanting to: (i) be harmful or to incite harm; and (ii) promote or propagate hatred. The “and” is very important because it means that both (i) and (ii) must be present for speech to be deemed hate speech. In the recent case against Jon Qwelane, the Constitutional Court ruled that wasn’t enough for speech to be offensive or hurtful, it must rise to the level of being harmful or inciting others to do harm or hate to be hate speech.
The Bill intentionally creates exceptions to hate speech to ensure an open society, and freedom of speech and religion remain protected in our Constitution. Before any alleged hate speech or hate crime can be prosecuted in a criminal court, the director of public prosecution will have to give their authorisation. The Bill also makes it a requirement for prosecutors to get a victim impact statement, considering the interests of the victim and the impact of the crime on them, which will play a vital role in deciding if and how to punish the offence.
Hate crimes are “message crimes”, traumatising not just the victim but sending a terrifying message to the broader group to which the victim is seen to belong. This is why hate speech and hate crimes sow division in communities, damaging our social fabric. An important aspect of the Bill is the recording of hate incidences, which will allow authorities to monitor trends and implement effective solutions to deal with problem. Civil society has emphasised the need for restorative-justice mechanisms as well as multilevel educational campaigns to address the root causes of hate.
South Africans are privileged to have many rights enshrined in our Bill of Rights and remarkable Constitution. With these rights come significant responsibilities, and we must ensure that the freedom to express our opinions and beliefs doesn’t negatively impact on the rights, safety, dignity, and equality of others.
History has shown us – and as Jews we know this too well – that societies where hateful, dehumanising language and isolated acts are allowed to flourish create a breeding ground for violence and atrocities. The Holocaust began with “othering” propaganda and ended in the chimneys of Auschwitz. The genocide of the Tutsi in Rwanda began with radio programmes describing “cockroaches” and ended with millions killed by the blades of machetes wielded by their neighbours. Hate in all its forms must be stopped in its tracks. It’s a matter of saving lives and it’s each of our responsibility.
- Alana Baranov is a writer and the political and social justice liaison for the South African Jewish Board of Deputies. She is deputy chairperson of the Hate Crimes Working Group, and a steering committee member of the World Jewish Congress’ Jewish Diplomatic Corps.
Mark Oppenheimer
June 1, 2023 at 4:25 pm
The Hate Speech Bill is a return to the apartheid-era criminalisation of speech. The bill controversy concerns not only its criminalisation of speech but the wide scope of its hate speech prohibition.
South Africa is a signatory to several international treaties that obligate it to prohibit and address hate speech. But the United Nations Rabat Plan of Action cautions that speech should be criminalised only as a measure of last resort.
Criminal sanctions that include imprisonment are not strictly necessary, when civil sanctions such as fines and apologies would suffice. The existing Equality Act already provides an avenue for civil sanctions.
Genuine hate speech is not constitutionally protected speech, and rightly so. The Constitution defines hate speech as “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. But the Hate Speech Bill reaches beyond this ambit.
Its proposed criminal hate speech offence encompasses expression that (1) is harmful or incites harm and (2) promotes or propagates hatred against (3) a group of people specifically listed in the bill. The bill further proposes a term of imprisonment for up to eight years for anyone found guilty of hate speech.
When criminalising hate speech, it is best to hue as close to the Constitution as possible. Doing otherwise risks eroding freedom of expression, a fundamental right that lies at the heart of democratic societies.
It is only rational to set a higher bar for criminal hate speech compared to civil hate speech. It is concerning that the bill’s definition of harm is very wide (and includes subjective and ambiguous concepts), that hatred is not defined, and many more groups are listed than in the relevant section of the Constitution.
In this sense, the Equality Act is not a good reference point. Its definition of hate speech is wider than the Constitutions, so it sets a low bar for hate speech. But it also only imposes fines and apologies on persons found guilty of hate speech, and not imprisonment.
Within reason, a wider definition for civil hate speech is constitutionally acceptable, while for criminal hate speech, is not. Furthermore, the limitations clause in our Constitution requires that less restrictive means be taken before limiting a right.
These concerns are only compounded by the lack of consistency in the way civil hate speech cases are being decided. At least the Equality Act is not sending anyone to prison. The Hate Speech Bill will.
It is only fair that the public knows what the criminal law requires to avoid committing offences. When looking at even a small selection of hate speech cases, it is difficult to know in advance how courts (and institutions such as the South African Human Rights Commission) will view a particular case. This is very concerning if an eight-year maximum sentence of imprisonment is on the table.
For example, Kenny Kunene called Julius Malema a cockroach and was found guilty of hate speech. University of South Africa lecturer Benny Morota referred to white South Africans as cockroaches and was not found liable. The human rights commission also concluded that Julius Malema’s assertion: “We are not calling for the slaughter of white people, at least for now …”, was not hate speech. This is perhaps not surprising, because one of its commissioners has admitted that, because of historical context, the commission is “purposefully lenient to black offenders in racial incidents”.
In contrast, the constitutional court ruled that Bongani Masuku’s statement, which included that “every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine” and that these “Zionists” must be targeted, exposed and subjected to perpetual suffering until they withdraw from Palestine, is hate speech against Jews.
More contrasts: the gratuitous display of the old South African flag is hate speech, while calling for the killing of white women and children is not. The Equality Court ruled in 2011 that the song Kill the Boer is hate speech, but ruled in 2022 that it is not.
It is not obvious, in fact it is quite confusing to know in advance whether what you say, or display, will be considered hate speech. And more specifically, whether you will be risking up to eight years imprisonment.
Is it fair to wonder whether the courts and the human rights commission are picking sides depending on who the offenders and victims are? That would mean that hate speech cases basically turn on individual subjective value judgments and not the objective consideration of the law and facts.
The Constitution is clear that all are equal before the law, but when it comes to the application of hate speech laws, are some now more equal than others?
yitzchak
June 3, 2023 at 8:41 am
and Ganiff Hendricks?
When can we expect him to be prosecuted for hate speech?
After all all his utterances point to contraventions of our Constitution.