COMMENT ON THE PREVENTION AND COMBATTING OF HATE CRIMES AND HATE SPEECH BILL SUBMITTED BY: DAVID CAROLISSEN 25 NOVEMBER 2016 1.

INTRODUCTION

From the onset I must register my deepest concern with the limited time afforded to the public, to comment on a piece of legislation of such importance. The Bill, if adopted will significantly curtail other rights such as “freedom of religion, belief and opinion”,1 as well as the freedom of expression.2 In addition it could impugn the rights outlined in section 31 of the Constitution, which provides as follows:3 (1)

Persons belonging to a cultural, religious and linguistic community may not be denied the right, with other members of that community (a)

to enjoy their culture, practise their religion and use their language; and

(b)

to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.

Consequently, the Department is hereby respectfully requested to extend the comment period, until 28 February 2017.

2.

HATE SPEECH IS NOT A HATE CRIME4

The attempt to address the scourge of hate-crimes in SA is commendable, but the inclusion of a section on hate-crime in the Bill is counter-productive. In this regard I align myself with the views on its inclusion expressed by Sanja Bornman (Chairperson of the Hate Crimes Working Group), who said it is “very bad news for victims of hate crime, which affects a wide range of people on the basis of race, nationality, gender identity and many other grounds”. 5 In the same article, Bornman denied the claims made by the Deputy Minister of Justice and Constitutional Development, Mr John Jeffery who said the Bill “incorporates the comments of the working group …”6 In fact, so Bornman argues, “contrary to the deputy minister’s 1

Section 15 of the SA Constitution (Act 108 of 1996) Section 16 of the SA Constitution (Act 108 of 1996) 3 Section 31 of the SA Constitution (Act 108 of 1996) 4 http://mg.co.za/article/2016-11-02-00-hate-speech-is-not-a-hate-crime (accessed on 24 November 2016) 5 Quoted in an on-line article; http://mg.co.za/article/2016-11-02-00-hate-speech-is-not-a-hate-crime (accessed on 24 November 2016) 6 Quoted in an on-line article; http://mg.co.za/article/2016-11-02-00-hate-speech-is-not-a-hate-crime (accessed on 24 November 2016) 2

1

remarks, the provisions were “not at the behest of the working group” and that its members were “surprised” at their inclusion.”7 I cannot agree more with Bornman when she said “there are existing laws in place, such as the provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act which could be improved to deal adequately with hate speech…”8 That Act amongst other has the following objectives: 

 

“the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16 (2) (c) of the Constitution and section 12 of this Act; to provide for measures to facilitate the eradication of unfair discrimination, hate speech and harassment, particularly on the grounds of race, gender and disability; to provide for remedies for victims of unfair discrimination, hate speech and harassment and persons whose rights to equality has (sic) been infringed.”9

In addition, in Section 10 of the aforementioned Act, when dealing with hate speech it provides as follows; 



“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one of more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention toa)

be hurtful;

b)

be harmful or to incite harm;

c)

promote or propagate hatred.

Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21 (2) (n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.”10

If there is a genuine need for additional measures to deal with “hate speech”, it can easily be achieved by amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000). A key and sacred quality to which every piece of legislation must conform to is the ability to “achieve an equitable balance between the right 7

Quoted in an on-line article; http://mg.co.za/article/2016-11-02-00-hate-speech-is-not-a-hate-crime (accessed on 24 November 2016) 8 Quoted in an on-line article; http://mg.co.za/article/2016-11-02-00-hate-speech-is-not-a-hate-crime (accessed on 24 November 2016) 9 Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000) 10

Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000)

2

to speak your mind and the right not to be harmed by what another says about you …” 11 In the unfortunate case where individual or social harm is caused by verbal utterance or publication, our law provides for recourse, either in criminal or in civil proceedings. These mechanisms are constitutionally-compliant, and are sufficient to deal with any claim a person or group may have against another, regardless of whether such claim is anchored in an assault in corpus, fama or dignitas. Our government cannot be seen to have launched a coordinated attack on the fundamental right to “free speech” enshrined in our Constitution. Even more noteworthy is the international call to reduce, or even abandon legislation that could potentially curtail the right to free speech. In this regard, already in 2010, the African Commission on Human and Peoples’ Rights “called on State Parties to repeal criminal defamation laws or insult laws which impede freedom of speech, and to adhere to the provisions of freedom of expression, articulated in the African Charter, the (Universal) Declaration (of Human Rights), and other regional and international instruments.”12 (my insert) This call no doubt is anchored in the realization that the potential cost of the criminalization of speech outweighs its benefits. Surely, the country with the most progressive Constitution on the continent cannot adopt a draconian law which will cast aspersion on our human rights commitment, and which will reverse the significant progress our nations has made since 1994? One must also be mindful of what is referred to as “the judicialisation of politics.”13 Along these lines Judge Jody Kollapen, a former SAHRC commissioner, has warned; “never do by … litigation what you can do by political mobilisation.”14 Legislation must respond to a genuine societal need. Its aim must be to make society better, stronger and more just. Nothing in South Africa, in spite of its warts and blemishes, suggests that this kind of legislation is indeed necessary, until one begins to speculate at the level of political contestation. It is then when one can appreciate how legislation of this kind can become a useful tool in the hands of the denizens in the Union Buildings, who might seek to silence their critics. 3.

HATE SPEECH AS DEFINED IN THE BILL

Even a cursory glance at the definitions used in the Bill makes for a worrying conclusion. Courts are defenders of our rights, not persecutors of trivial matters or mundane disputes between political and other foes. It is an upper guardian and protector of our democracy, not a tool in the hands of a tiny minority. If the definitions in the Bill survive parliamentary scrutiny, it can easily end up as a means to settle political and personal scores. Let us for 11

Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 25 B-E.

12

http://old.achpr.org/english/resolutions/Resolution169_en.htm (accessed on 24 November 2016) 13 As quoted in an on-line article; http://www.dailymaverick.co.za/article/2014-09-16-op-ed-insult-laws-vs.-freedom-of-speech/ accessed on 24 Nov. 16 14 As quoted in an on-line article; http://www.dailymaverick.co.za/article/2014-09-16-op-ed-insult-laws-vs.-freedom-of-speech/ accessed on 24 Nov. 16

3

example consider the word “ridicule” as used in the Bill. Ridicule can be defined as “the act of using words, gestures, images, or other products of expression to evoke laughter or contemptuous feelings regarding a person or thing.”15 In plain language it means to make fun of something/somebody, and has the synonyms of mocking, satire or sarcasm. Under the current definition anybody making fun of for example the President (or anybody else) could be guilty of hate-speech, an offence carrying a sentence of up to 10 years in prison. This is absolutely concerning, unless of course it is the kind of outcome this Bill seeks to achieve. By the same token, a person might choose to walk around naked and believe it’s his right to do so. When I disagree and express my condemnation of such action, does that amount to hate speech and criminal behaviour on my part? Under the current provisions of the Bill it can easily be so construed, since “contempt” can also be defined as showing or expressing a “strong feeling of dislike”.16 It is worthwhile, for the sake of argument to quote hereunder the full definition in the Bill (with my emphasis); “Any communication whatsoever that (i) (ii)

advocates hatred towards any other person or group of persons; or 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 – (aa) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or (bb)

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, occupation or trade, is guilty of the offence of hate speech.” Let us for a moment consider the following rendition, made feasible by the wide definition that can be ascribed to almost every word in this section: “Any communication whatsoever that … is … insulting towards any other person …, and which demonstrates a clear intention, having regard to all the circumstances, to … bring into contempt or ridicule, any person based on … occupation or trade, is guilty of the offence of hate speech.” It should then become clear that any communication (gesture, drawing, word, etc), making fun of a politician by virtue of his “occupation” will constitute the “offence of hate speech.” In the same vein, one can consider the term “insulting”, which can mean to “treat with gross 15 16

http://www.yourdictionary.com/ridicule (accessed on 23 November 2016) http://dictionary.cambridge.org/dictionary/english/contempt (accessed on 24 November2016)

4

insensitivity or insolence”. The same word can also mean to “speak with disrespect or scornful abuse”, or its meaning can be “to aggravate, to annoy, to tease, to underestimate or to put down.”17 It is quite conceivable that words which can be construed as harmless teasing by one person could easily be seen as scornful abuse by another, especially a hypersensitive person. This is especially significant when the Bill defines harm as follows; “any mental, psychological, physical or economic harm”. By so doing it introduces the possibility of criminal prosecution, on the basis of arbitrary and subjective feelings, which are not quantifiable and cannot be proven in a scientific and objective manner. It cannot be expected from our courts to constantly embark on exercises in absurdity, which will undoubtedly ensue if this Bill is passed. Our courts will be forced to take sides, since it will be required to venture into the nebulous arena of ideas, opinions, personal feelings and religion. It is an arena for which there are no proper scientific yardstick or legal instrument; and nor should there be. Any delict or offence that could arise in these esoteric fields of individual and social contestation is sufficiently covered in existing legislation or established jurisprudence; a law such as this will do more harm than good. Let us consider more examples,    

“If you hit me, I will kill you!” You are a bunch of low lives! SA men like women, their President got a handful! Don’t call me lady; that is an insult!”

All of the above, under the current definitions in the Bill could potentially be construed as hate speech. Where will one draw the line? How will the court balance the competing rights of free speech and protection from harm as widely and generously defined in this Bill? Consider for a moment the following scenario; “I grew up as an Anglican. The church decided to accept and endorse same-sex marriages, which prompted me to forsake my church-membership. They had the right to decide for themselves, and I had a corresponding right to disagree with them. If I had a right to disagree with them and to leave the institution, I must have the right to openly express my disagreement with their decision.” As it stands, under the current provisions of the Bill this right will be criminalized. For these reasons one can fully appreciate the clarion call by the African Commission on Human and Peoples’ Rights made in 2010. The criminalization of speech is fraught with difficulty, the implementation of which can easily lead to abuse and persecution by means of the courts. No wonder, in comparative legal systems where it was indeed adopted, hate speech is carefully defined, even though not without difficulty or ambiguity. For example in Canada, an accused will be acquitted “… if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief 17

http://www.yourdictionary.com/ridicule (accessed on 23 November 2016)

5

in a religious text…”18 No doubt, this is an important qualification, without which the religious views of millions (Christians, Muslims, Jews and even African traditionalists) will be rendered illegal. In addition, in framing it’s prohibition of hate speech, the Canadian Code also states clearly that “nothing in this section shall be deemed to interfere with the free expression of opinion upon any subject in speech or in writing.” 19 4.

CONCLUSION

In my submission the current instruments, in criminal, civil and constitutional law are sufficient to protect existing rights, unless one wants to advance a particular political or social agenda. We have at least three legal instruments that can be used to deal with speech that is discriminatory and offensive. For obvious reasons a Bill on hate crimes should be welcomed, but not the controversial section on hate speech. Interestingly the Bill chose to use the word “advocate”, which can be defined as “publicly supports or recommends a particular cause or policy”, while in the Promotion of Equality and Prevention of Unfair Discrimination Act one finds the word “propagate” (“to spread and promote widely”).20 I submit there is no reason to curtail and criminalize the right to free speech as contemplated in this Bill, with the concomitant, lengthy prison sentences envisaged for such crimes. In addition, if this piece of legislation is adopted it will render meaningless the right to religion, belief and opinion. In a pluralistic and democratic society such an eventuality cannot be countenanced. In fact, how the Department can even contemplate legislation of this kind makes for scary thought. At least one is comforted by the idea that it is unlikely to pass Constitutional muster. Consequently the Department is respectfully requested to delete the section on Hate Speech. In addition you are humbly requested to afford the general public ample time to engage a Bill of this significance, by extending the deadline for submissions. ---------------------------------------------------------------

18

19 20

https://en.m.wikipedia.org/wiki/Hate_speech_laws_in_Canada (accessed on 24 November 2016) https://en.m.wikipedia.org/wiki/Hate_speech_laws_in_Canada (accessed on 24 November 2016) http://www.yourdictionary.com/ridicule (accessed on 24 November 2016)

6