Section 16 of the Constitution entrenches the right to freedom of expression to everyone within the Republic. It includes the caveat that certain types of expression are excluded from this entitlement, including advocacy of hatred, a form of which is hate speech.
Of course, constitutional law seeks to provide only a skeleton – a minimum standard – that is generally fleshed out by enabling legislation and policy.
To date, disputes surrounding freedom of expression have been dealt with under the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda). Now government seeks to introduce a new piece of legislation, the Prevention and Combating of Hate Crimes and Hate Speech Bill, which attaches criminal sanctions to inter alia what the pending legislation deems to be hate speech.
This is problematic on a number of fronts: in particular that it puts pressure on an already ailing criminal justice system, and that it is not conducive to rehabilitation of the offender and true restitution for the victim.
For these reasons, this piece aims to put forward an alternative approach government can use, through the existing powers of Pepuda’s equality courts. It will make the pathway to resolving freedom of speech disputes viewed as tantamount to hate speech in a restorative justice fashion.
According to the Draft Restorative Justice National Framework, “Restorative justice is seen as a broad approach oriented towards repairing, as far as possible, the harm caused by crime or other transgressions. A core element of restorative justice is active participation by the victim, the offender and possibly other parties (the community).”
Examples of restorative justice are victim-offender mediation or group conferences.
The idea here is that the person who allegedly made the utterance that was deemed tantamount to hate speech and the alleged victim, as well as community representatives where appropriate, can be brought together in a consensus-seeking approach whereby parties must agree on how to treat each other in the future.
This personalises the stake they have in resolving the issue and is an incentive to follow the agreed-upon path.
Attention should be focused on the alleged incident of hate speech and each party should be asked the same set of questions and be given the same platform to provide answers.
Parties to the dispute should also have an opportunity to ask each other questions – a process that the person facilitating the process should moderate.
This form of controlled equality will ensure that the restorative process does not cause any further discrimination or marginalisation through purported hate speech. The questions that are asked should point to the kind of harm caused, and the repercussions.
Parties should be asked what they would like to happen in order for them to move forward. Together they will then negotiate a way forward, culminating in an agreement.
Restorative justice approaches can greatly benefit those who have been marginalised.
It gives such people the opportunity to address the offender, or to participate centrally in a decision-making process, to articulate their issues and to “take back control” they feel they may have lost, as well as to question the alleged offender.
It also allows a victim to observe any remorse shown by an offender.
This has been shown to reduce anxiety and trauma amongst those who have experienced phenomena such as racism or bullying (spaces in which purported hate speech can typically take place).
It is important to note that though a restorative justice process would be undertaken because one person or group of people discriminated against another or others through purported hate speech, a restorative process is not designed simply to benefit the learner who has been discriminated against.
It also gives the person who allegedly made the utterance the opportunity to explain their version of events, to learn about the harm they caused, to acknowledge that harm, to apologise and to make the attempt to repair relationships that may have been damaged by the alleged hate speech.
Criminalisation of a practice has many destructive effects on a person’s life, such as loss of employment, poor prospects of future employment, and breakdown of familial relations.
It should thus be a measure of last resort – particularly if there is scope for rehabilitation of an offender and restitution for the victim.
There is also nothing precluding a victim from pursuing a claim for damages at private law in the event that they feel they have endured pain and suffering beyond the scope of the restorative process.
As articulated, the equality court already has the powers to initiate restorative processes. It would not require any new law-making, merely perhaps a set of guidelines.
Also as articulated, there already exists a Draft Restorative Justice National Framework, perhaps lobbying for its promulgation, and the inclusion of its application to these processes specifically could assist.
The Child Justice Act contains extensive provisions surrounding restorative justice. Borrowing from these provisions would be extremely useful.
Restorative processes can be incredibly valuable. If not curative in incidents of hate speech, it offers scope for both victims and offenders to decide upon how each can best be helped.
Were such a programme properly resourced and regulated, parties to a dispute and those around them could benefit massively from a learning and healing experience that would lead to a more tolerant South Africa with higher moral standards and values.
The views of the writer are not necessarily those of the Daily Friend or the IRR.