The Prevention and Combating of Hate Crimes and Hate Speech Bill,1 which is currently before the Department of Justice and Constitutional Development, is a highly contested piece of draft legislation and has generated a large amount of debate. Earliest talks around the formation of the Bill began in 2009. Originally intended to solely address the offence of hate crimes, it was only in 2015, spurred partly by the public outrage of the infamous Penny Sparrow incident (where the former KwaZulu-Natal estate agent wrote a Facebook post likening black people to monkeys), that the offence of hate speech was included as part of the Bill. Since late-2016, invitations to comment on the Bill have been postponed to a later date due to the public’s need for more engagement. Tuesday 31 January 2017 was the final submission date.
A range of interested parties have submitted input on the Bill, from conservative religious groups not wanting to be denied the right to speak out against homosexuality;2 to human rights groups defending the constitutionally-entrenched right of freedom to expression; to politicians’ and journalists’ concerns around the political agenda of the Bill being to silence critics of government. I work with Sonke Gender Justice to support their work on the Hate Crimes Working Group, who has recently published a briefing note stating the following:
“We note that new proposed legislation entitled the Prevention of Hate Crimes and Hate Speech Bill specifically criminalises hate speech. While we celebrate the drafting of explicit legislation that recognizes hate crimes, we are opposed to the criminalisation of hate speech in this Bill. We are opposed for legal, practical, and ideological reasons…”
The Bill’s main cause of upset is thus undoubtedly the incorporation of the offence of hate speech, which is defined as follows:
“Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –
(a) advocates hatred towards any other person or group of persons, or (b) is threatening, abusive or insulting towards any other person or group of persons;
and which demonstrates a clear intention, having regard to all the circumstances, to –
(i) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or
(ii) stir up violence against, or bring into contempt or ridicule, any person or group of persons,
based on race, gender, sex, which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade, is guilty of the offence of hate speech.”
Couched in wide terms, hate speech as defined in the Bill technically does not require incitement towards violence, which is a key aspect of other definitions of hate speech in South African law (as in section 16 of the Constitution and section 10 of the Equality Act). Some argue that with this new definition, hate speech could in effect amount to a person simply gesturing to another person in a manner that is insulting and brings that person into contempt or ridicule based on one of the prohibited grounds of prejudice. What is more, the gesturing person could go to prison for three to 10 years. The punishment clearly does not fit the crime.
The Bill also criminalises more injurious instances of hate speech, which might cause serious emotional harm to a person or group of persons, however one should still question whether the appropriate punishment should be imprisonment. Incarceration in such circumstances will surely punish the hate speech culprit, but it is unlikely to bring about rehabilitation.
Hate speech is arguably a product of socialisation – one is not biologically predisposed towards prejudice, it is rather a response to societal norms and upbringing. I would argue that one needs to understand and confront the phenomenon of hate speech through a humanist paradigm; that is one which relies on rehabilitation and behavioural-change. A Hobbesian-inspired crime control measure, such as incarceration, would thus be an inappropriate intervention.
This is especially true considering the state of South African prisons: gang activity is prevalent and destructive; there are high incidences of rape and sexual violence; and prisons are severely overcrowded, unstaffed and unsanitary – which leads to pandemics of HIV and TB. According to The Lancet, HIV prevalence is three times higher in prisons than in the general population,3 whilst the incidence of TB has been found to be 23 times higher in prison populations than in the general community.4 As reflected by our recidivism rate – sitting at an estimated 60%,5 one of the highest in the world – South African prisons are a far cry away from being rehabilitative. Thus whilst incarceration may indeed punish the offender by physically removing him/her from broader society, it is highly unlikely that such a punishment will change the mindset of the offender and his/her understanding of prejudice for the better. Instead, the offender might become further indoctrinated by his violent surroundings, and be released from prison with the same propensity for hate speech as they were before.
Importantly, South Africa already has a range of legal mechanisms in place to deal with hate speech. The Promotion of Equality and Prevention of Unfair Discrimination Act, more commonly known as the Equality Act, creates a civil law offence of hate speech and provides various sanctions therefor. These include payment of damages, as well as more restorative measures such as a formal apology and the furnishing of regular progress reports to the court with regards to any remedial order that has been granted. These remedies encourage the hate speech culprit to examine the basis of his/her prejudice, and to make amends. I would argue this existing mechanism is both practically and theoretically preferable to incarceration as a sanction for hate speech.
However, the Bill should not be rejected in its entirety. It is crucial for combatting hate crimes, through the creation of hate crimes as a stand-alone category of offences and the requirement for disaggregated data and reporting on such crimes. Hate crimes are thought to be different from other crimes and worthy of extra attention for several reasons: firstly, violent hate crimes have been found to be more brutal than similar non-hate crimes; secondly, hate crimes often cause the direct victim to suffer from psychological stress, more so than a non-hate crime victim; and thirdly, hate crimes are likely to have a serious negative impact on the community or group that the direct victims belongs to.6 So-called ‘corrective rape’ is an example of a prominent hate crime in South Africa – not only does it physically harm the victim, but the act emotionally shames the victim with regards her sexual orientation, and stirs up fear amongst other lesbians in the community. The Bill affords such crimes based on prejudice and hate the seriousness it deserves.
There will be further opportunity for public engagement on the Bill once it comes before the Portfolio Committee, reportedly in March this year. Hopefully enough stakeholders will speak out against the inclusion of hate speech and provide innovative alternative strategies, particularly in relation to sanctions. At the same time, however, they would be remiss not to acknowledge the positive impact of the inclusion of hate crimes in the Bill.
- Available at: http://www.justice.gov.za/legislation/bills/2016-HateCrimes-HateSpeechBill.pdf
- See For SA’s submission at: http://forsa.org.za/wp-content/uploads/2017/02/FORSA-Submission-30Jan2017.pdf
- Kamarulzaman A, Reid SE, Schwitters A, et al. ‘Prevention of transmission of HIV, hepatitis B virus, hepatitis C virus, and tuberculosis in prisoners’ (2016) 388(10049) The Lancet 1115. Published online July 14. DOI: http://dx.doi.org/10.1016/S0140-6736(16)30769-3.
- Dolan K, Wirtz AL, Moazen B, et al. Global burden of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. Lancet 2016; 7-20. Published online July 14. DOI: http://dx.doi.org/10.1016/S0140-6736(16)30466-4.
- Dissel, Amanda. “Rehabilitation and Reintegration in African Prisons.” Human Rights in African Prisons. HSRC Press: Cape Town, 2007, 155-176.
- Joshua Freilich and Steven Chermak ‘Hate crimes’ (2013) Problem-Oriented Guides for Police, Problem-Specific Guides Series No. 72. Available at: http://www.popcenter.org/problems/pdfs/hate_crimes.pdf