The Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018 is ‘both unconstitutional and unnecessary and should be abandoned rather than pursued’, the Institute of Race Relations (IRR) recommends.
In its submission to the Portfolio Committee on Justice and Correctional Services, the IRR argues that in addition to the ‘fatal defect’ of the unconstitutionality of the hate speech provisions in the bill, these ‘will also undermine the rigorous debate that is vital to South Africa’s democracy’.
IRR head of policy research Anthea Jeffery writes in the submission: ‘If unevenly applied, they are likely to add to racial polarisation and racial hostility, rather than reducing these ills. In addition, insofar as the country needs hate speech provisions, the key requirement is to narrow those already contained in the Promotion of Equality and Prevention of Unfair Discrimination Act (Peduda) – not enact new provisions that are equally in breach of the Constitution.’
Jeffery adds: ‘As for the hate crimes provisions in the Bill, these are poorly worded and confusing. They are also unnecessary, as the courts already have the capacity to take racial motivation into account as an aggravating factor in deciding sentence.’
The submission argues that ‘(turning) hate speech into a crime is particularly objectionable – and especially so when the potential for the abuse of criminal defamation rules is already well known and has been particularly evident in many African states.’
The IRR recommends: ‘Existing protections for artistic expression, academic and scientific works, religious proselytising, and fair and accurate reporting in the public interest should, of course, be retained. Liability should remain civil, rather than criminal. Enforcement should be even-handed, and penalties should focus on public apologies, community service, and the payment of damages in appropriate instances.
‘The government should also embrace a fundamentally different approach by seeking to build on the racial goodwill already so strongly evident across the country, as IRR opinion polls have repeatedly and consistently shown. It should abandon its ideological commitment to a national democratic revolution aimed at ushering in a socialist and then communist future, which is a key reason for its over-emphasis on white racism as the most pressing problem confronting the country.’
Jeffery concludes: ‘The ANC alliance should stop pretending that the reprehensible racial utterances and conduct of the few are representative of the many, when clearly this is not so. It should also abandon its own racial rhetoric, commit itself unambiguously to the constitutional value of non-racialism, jettison policies that depend on racial classification and racial preferencing – and set about promoting the growth, investment and employment that are most needed to promote social cohesion and help the poor and disadvantaged get ahead.’