The infamous Prevention and Combating of Hate Crimes and Hate Speech Bill has been back on the intelligentsia’s lips in recent weeks. Parliament has also picked up the laborious process of adopting this law again. On 26 October 2022, I attended the latest deliberations of the parliamentary Portfolio Committee on Justice and Correctional Services, which is responsible for the bill.
Originally introduced in 2016, the Hate Speech Bill was poised to bring constitutional freedom of expression to an end by banning insults and ridicule. It was revised in 2018, removing these most harmful provisions, and again this year. Is the Bill still something the public should fear?
The new test for hate speech
The Hate Speech Bill’s definition (and prohibition) of hate speech as it stands reads as follows:
“Any person who intentionally publishes, propagates, advocates, or communicates anything to one or more persons in a manner that could reasonably construed to demonstrate a clear intention to be harmful or to incite harm and promote or propagate hatred based on one or more of the [listed] grounds is guilty of the offence of hate speech.”
To be guilty of hate speech, one must meet each of the following requirements:
- Intentional
- publication, propagation, or advocacy of / Communication to one or more persons of
- anything
- in a manner that could reasonably be construed
- to demonstrate a clear intention
- to be harmful or to incite harm
- and promote or propagate hatred
- based on
- a listed ground.
The listed grounds in the latest version of the Bill (and it must be remembered that the parliamentary committee has not yet approved all of them – it remains in draft form), are:
- Age;
- Albinism;
- Birth;
- Colour;
- Conscience;
- Culture;
- Disability;
- Ethnic or social origin;
- Gender;
- HIV or AIDS status;
- Language;
- Marital status;
- Nationality, migrant, or refugee status or asylum seekers;
- Pregnancy;
- Race;
- Religion;
- Sex; or
- Sexual orientation, gender identity or expression or sex characteristics.
There must be an intention behind the publication, propagation, advocacy, or communication. One cannot accidentally or negligently publish, propagate, advocate, or communicate.
The thing being published, propagated, advocated, or communicated, can be anything, from a political statement to a braai rant.
One must be able to reasonably argue that this thing being intentionally published, propagated, advocated, or communicated demonstrates a clear intention.
This demonstrable clear intention must be aimed at being harmful or inciting others to harm, and at the same time promote or propagate hatred. “Harm” and “hatred” must both be involved. If the harm is not related to hatred, or if there is a propagation of hatred without any harm or incitement to harm, it would not qualify.
The hatred must be based on one of the 18 or so listed grounds.
The constitutional test
This byzantine test might seem rigorous, but it is well beyond what the Constitution envisions.
When I drafted the submission for the Free Market Foundation (FMF) on the Hate Speech Bill, I recommended to the Department of Justice that if they wish to continue with their outlawing of hate speech (which both the FMF and Institute of Race Relations [IRR] believe must not be done legislatively), the Bill’s wider definition of hate speech must be replaced with a duplication of section 16(2)(c) of the Constitution.
Section 16(2)(c) of the Constitution is the enabling provision for a legislative ban on hate speech, and provides as follows:
“The [right to freedom of expression] does not extend to advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.”
Hate speech under the Constitution would thus involve the [intentional] advocacy of hatred that constitutes incitement, which incitement must be to cause harm. It may only relate to the four grounds.
Duplicating this in the Hate Speech Bill would have entailed a ban on expression that “advocates hatred based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.”
The Hate Speech Bill as it now stands does not simply outlaw hateful and harmful expression based on the four grounds of race, ethnicity, gender, and religion, but additional grounds adding up to some 18, such as “age,” “conscience,” “culture,” and “language.”
To those of us who have a more traditional understanding of constitutional law, when the constitutional text sets the parameters of a government legislative power, and these parameters are disregarded, such transgressions are unlawful. In other words, if the Constitution says government may only prohibit hateful and harmful expression based on four grounds, if government prohibits it on any other or more than those four listed grounds, it would be unconstitutional.
The Department of Justice does not agree.
In a reply to the FMF’s submission, the Department wrote that “the grounds in section 16(2)(c) of the Constitution are restricted and society has evolved beyond these grounds.” As a result, “analogous” grounds may be included.
The result of this is to demote the constitutional text to a guide, not a supreme law. To suppose that a society can “evolve” beyond the parameters of a supreme constitution and in so doing government may simply disregard the constitutional limits on its powers, is to suppose that constitutional supremacy is at an end.
“That the recognised grounds in Section 16(2) are limited to four is not an oversight and cannot be ignored,” writes Dr Anthea Jeffery in the IRR’s submission. Moreover, it is not clear how age, conscience, culture, or language are in any way analogous to race, ethnicity, gender, or religion.
The correct approach is to regard the constitutional text as ultimately authoritative and not attempt to go beyond it.
Harm
Apart than the laundry-list of grounds that the Hate Speech Bill now unconstitutionally includes, the remainder of the new test for hate speech is relatively unobjectionable, albeit imperfect. The problem comes in when one has regard to how “harm” (a crucial aspect of the new test for hate speech) is defined in the Bill.
The Bill defines harm as “any emotional, psychological, physical, social, cultural, or economic harm that objectively undermines the human dignity of the targeted individual or groups.”
The Bill also includes a “juristic person” under the definition of “victim.” This means that organisations – say, for example, the African National Congress (ANC) – could be the “victim” of “social, cultural, or economic harm” based on hatred for its “conscience” or “culture.”
Traditionally, “harm” at law was regarded as physical harm. This is, no doubt, what the drafters of section 16(2)(c) of the Constitution had in mind when they said that freedom of expression does not extend to incitement to cause harm.
They certainly did not have “social, cultural, or economic harm” in mind, because, after all, many of us have a perfectly legitimate desire to cause social, cultural, or economic harm to others.
Those who hate racists and wish to boycott their businesses and advocate that others do the same, do so to cause social and economic – even emotional – harm to those racists. The racists might claim that racism is part of their culture, which is a protected ground. There is also no doubt that many South Africans hate the ANC for fundamental reasons related to its very organisational culture and conscience, and that many rightly wish to do the ANC (primarily social and economic) harm as a result.
Exemptions
The Hate Speech Bill ostensibly introduces various exemptions from the hate speech prohibition. Good faith engagement in artistic activity, scientific or academic inquiry, fair and accurate reporting or commentary, or proselytising of religious beliefs, would not count as hate speech, provided they do “not advocate hatred that constitutes incitement to cause harm based on one or more of the grounds.”
The Department of Justice, in formulating these exemptions, committed another basic constitutional law error. It effectively codified three of the four items in an open list of the “types” of freedom of expression found in section 16(1)(a)-(d) of the Constitution. It also codified the section 15 right to freedom of religion.
The mistake is that section 16(1) refers to a general right to freedom of expression, which simply “includes” the listed types – freedom of the press and other media, freedom of artistic creativity, and academic freedom and freedom of scientific research. These items were not meant to be exhaustive of freedom of expression, meaning that the justice department’s focus on them is misplaced. And section 15, in turn, refers not only refer to freedom of religion, but also freedom of conscience and opinion.
Funnily enough, out of the four listed types of free expression, the second – “freedom to receive or impart information or ideas” – is not included in the exemptions. The government was very peculiar in how it formulated the exemptions, in fact not exempting much of substance at all.
But eagle-eyed readers will also note that these are not exemptions at all when the proviso – to not advocate hatred that constitutes incitement to cause harm – is included. The offence of hate speech applies to each excepted activity with that proviso, especially in light of the broad definition of “harm.” The proviso should be redrafted to allow all the contemplated good-faith expressions except those that amount to incitement to cause physical harm.
However, even assuming a judge would read the exemptions as exemptions and not merely as a typo by Parliament, the exemptions do not provide cover for the community that wishes to boycott the cultural racists’ businesses, or the political activists seeking to harm the ANC socially or economically. An additional exemption, for sincere political expression – not extending to advocacy or incitement of physical harm – should be added.
A threat to democracy?
The Hate Speech Bill is clearly not an existential threat to constitutional democracy in South Africa any longer. The 2016 version of the Bill would have brought all political discourse to an end. The 2022 version is far more benign.
However, the two major problems identified above – too many protected grounds and too wide a definition of “harm” – could still have a chilling effect on dynamic civil and political engagement, particularly in light of the very real possibility of selective prosecution.
We must always bear in mind that the ANC does not legislate in good faith. It legislates to create opportunities or protections for itself as a party and for the government it controls. The Hate Speech Bill itself, after all, came about at a time when the ANC wanted to draw attention away from its corruption and destruction of the economy and towards the minute problem of interpersonal racism.
The Penny Sparrow and Vicki Momberg rants provided the perfect cover.
It is therefore not outside the realm of possibility that the Hate Speech Bill will be used opportunistically to persecute harmless (but no less offensive) estate agents and retired tannies who forgot that the 1960s are over, while leaving powerful people like Julius Malema free to incite racial violence on a genocidal scale.
Yoliswa Yako of the Economic Freedom Fighters (EFF) at the 26 October meeting of the parliamentary committee made it quite clear that she was worried that the Bill could be used to go after those advocating “anti-racism” which could be interpreted as “racism.” Deputy justice minister, John Jeffery, replied that the Department of Justice does take her concerns seriously, and that government will ensure “anti-racists” are not persecuted.
We know what the EFF, and many in the ANC, have in mind when they appeal to “anti-racism.” Selective and opportunistic prosecution seems to be a very real possibility.
Ideally, the Hate Speech Bill should be scrapped entirely. South Africa already has the Equality Act which prohibits hate speech on civil (not criminal) grounds, and the doctrine of crimen injuria which criminally punishes the most severe instances of dignity-harming expression.
Taking (non-coercion-threatening) expression from the realm of the civil into the realm of the criminal creates a dangerous chilling effect in society, and has no place outside of tinpot dictatorships.
But if this is not done, the Bill should be amended to mirror section 16(2)(c) of the Constitution and redefine “harm” to refer only to physical harm.
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