Is hate talk free speech or injurious?
February 7, 2017
The Prevention and Combating of Hate Crimes and Hate Speech Bill should be scrapped as it is unconstitutional and unnecessary and could do more harm than good.
This is according to submissions by the South African Institute of Race Relations (IRR), the Free Market Foundation (FMF) and other stakeholders.
Martin van Staden, Legal Researcher of Rule of Law Project at FMF said the Bill could create a climate of fear “because people will fear saying something which might land them in prison for three years.”
Acts of xenophobic violence committed against foreigners resulting in deaths, sporadic utterances of racial abuse on social media platforms were some of the reasons the bill was formulated.
Among the provisions, the law will criminalise the act of “insulting” someone “with the intent” to ridicule them or “bring them into contempt”.
“These are things all human beings do. It is part of our nature. No law, no matter how well intentioned, can rectify this,” Van Staden said.
He said it was similar to apartheid laws, but even broader because it included ordinary things that “people may joke around the table” and what journalist report on.
The Bill, which aims, as published in the Government Gazette, include prevention of hate crimes and hate speech and provide for sentences for offenders of up to three years as well as heavy fines.
The bill was approved by cabinet for public comment in October 2016.
However, the IRR said the hate speech provisions in the Bill would primarily focus public attention on white racism and other laws were already in place to prosecute offenders found guilty of hate speech.
In its submission the IRR said double standards in enforcement was likely to be applied. In the past year, existing hate speech rules have been strongly enforced against Penny Sparrow, who insultingly compared black beach-goers to monkeys, and various whites who have used the ‘k’ word against blacks. By contrast, virtually no action had been taken against Velaphi Khumalo who called in January 2016 for whites to be “hacked and killed like Jews” and their children to be “used as garden fertilizer”.
The hate speech provisions in the Bill covers any speech, song, cartoon, tweet, Facebook post, or e-mail which is intentionally “insulting”.
A survey by the IRR last year showed that only 3.2% of South Africans identified racism as a serious unresolved problem. The public is more concerned about joblessness, service delivery, corruption, poor education, and inadequate housing.
“There is no looming racial crisis that could justify the Bill.”
The Constitution guarantees freedom of speech, unless it: advocates hatred and constitutes incitement to cause harm.
According to the Bill, speech is criminalised even if it is merely “insulting” and shows intent to bring someone into “ridicule” on any one of 20 listed grounds. The IRR said contrary to the Constitution, the Bill would allow speech to be prohibited and punished simply because, for example, it insulted South African President Jacob Zuma and brought him “ridicule” for what he had done as part of his “occupation”.
The IRR said if the hate crimes provisions were used primarily against white perpetrators and rarely against black ones, it would add to racial tensions, foster racial polarisation, and make it more difficult to uphold the Constitution’s founding value of non-racialism.
In its submission the Right2Know organisation said the draft Bill did not fix the vestiges of racism, patriarchy, xenophobia and related intolerances.
“Instead it tries to criminalise individual behaviour while leaving the structural and institutional causes and factors that feed those intolerances," the IBR sai.