Prevention and Combating of Hate Crimes and Hate Speech Bill

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The Prevention and Combating of Hate Crimes and Hate Speech Bill is being considered in the Parliament of South Africa Houses of Parliament (Cape Town).jpg
The Prevention and Combating of Hate Crimes and Hate Speech Bill is being considered in the Parliament of South Africa

The Prevention and Combating of Hate Crimes and Hate Speech Bill is a bill aimed at reducing offensive speech and curbing hate crimes in South Africa. [1] The Bill was introduced in 2016 and sits before the South African National Assembly. [2] Some of the stated intentions of the legislation include to "provide for the prevention of hate crimes and hate speech" and to "provide for effective enforcement measures" against those who express their "prejudice or intolerance towards the victim." [3] The bill has been subject to much debate, with some groups expressing concern over the implications of restricting speech. [4] [5] [6] Others have contended that the bill is necessary given the level of discrimination in South Africa and the decades-long Apartheid years before 1994. [7] [8]

Contents

Background

Even after the end of the Apartheid era, South Africa has struggled with racial divisions, discrimination, and violence. [9] Although the elimination of Apartheid ushered in majority election voting and eliminated widespread voting discrimination, South Africa nevertheless is home to much prejudice. [10] An aspect of South African inequality is evident in the disproportionately high rate of poverty among the black population, despite the black population consisting of the ruling majority. [11] One specific legislative effort aimed to correct such inequality occurred in 1994, when the government led by the ANC enacted the Restitution of Land Rights Act designed to redistribute land back to certain black populations that was taken during the colonial era. [12] As South Africa continues to deal with the issues consequent of the Apartheid legacy, other proposed solutions have been to pass legislation, such as the Hate Crimes and Hate Speech Bill, to uphold South Africa's Constitutional ban on racism and commitment to equality. [13] [14]

Summary

Preface

The Constitution of the Republic of South Africa allows for the freedom of expression with certain exceptions, one which prohibits the "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm." [15] This exclusion is one of many considerations noted in the preamble of The Prevention and Combating of Hate Crimes and Hate Speech Bill. [3] The Act begins by defining certain key terms found within the text and proceeds to detail the purpose of the Act as follows:

Hate crimes and hate speech

The act then explains what characteristics of an offence constitute a hate crime, as follows:

  1. age;
  2. albinism;
  3. birth;
  4. colour;
  5. culture;
  6. disability;
  7. ethnic or social origin;
  8. gender or gender identity;
  9. HIV status;
  10. language;
  11. nationality, migrant or refugee status;
  12. occupation or trade;
  13. political affiliation or conviction;
  14. race;
  15. religion;
  16. sex, which includes intersex; or
  17. sexual orientation. [3]

Hate speech, according to the act, is an offence directed at any of the aforementioned characteristics, excluding 12 and 13. [3]

Exemptions

Although no exemptions exist for hate crimes, there are several exemptions regarding hate speech within the bill. The fifteen characteristics that constitute hate speech do not apply "if it is done in good faith in the course of engagement in—" [3]

  1. any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm;
  2. any academic or scientific inquiry;
  3. fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996; or
  4. the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm. [3]

Prevention of hate crimes and hate speech

One of the final sections of the bill stipulates that programs must be developed in order to:

1. conduct education and information campaigns to inform the public about the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences;

2. ensure that all public officials who may be involved in the investigation and prosecution of hate crimes and hate speech are educated and informed of the prohibition against these offences;

3. provide assistance and advice to any person who wants to lodge a complaint of a hate crime or hate speech; and

4. train public officials on the prohibition, prevention and combating of hate crimes and hate speech, which training must include social context training. [3]

Reception

Support

Arguments in favour of the bill tend to align with broader arguments that support limiting hate speech in general, including the belief that the harms associated with certain speech warrant censorship, that unfettered speech propagates discrimination, and that freedom of speech should not be used to protect this discrimination. [14] South African Committee Chairperson Mathole Motshekga stated that the bill is intended to address increasing intolerance and to allow assistance to the victims of the crimes. [7] Deputy Minister of Justice John Jeffery noted that South Africa is not unique in its consideration of a Hate Speech bill and that in South Africa, there is no "absolute right" to freedom of expression in place, although a balance between censorship and speech is needed. [8]

Opposition

Arguments against the bill also tend to align with broader arguments that oppose limiting free speech, including the belief that laws restricting hate speech invariably curb free discourse. [14] Human Rights Watch has expressed concern over the bill's language and potential to lead to significant restrictions on freedom of expression. [4] The Helen Suzman Foundation, a South African think-tank dedicated to promoting "liberal constitutional democracy," submitted a response outlining a list of reasons why the group fundamentally opposed the bill. [5] The South African Institute on Race Relations also submitted a response opposing the bill, criticizing John Jeffery by stating that "hate speech laws in Australia, Canada, and Kenya are very different" and also warning that "double standards will apply in the enforcement of both the hate speech and hate crimes provisions." [6]

Related Research Articles

A hate crime is crime where a perpetrator targets a victim because of their physical appearance or perceived membership of a certain social group.

Hate speech is a legal term with varied meaning. It has no single, consistent definition. It is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". The Encyclopedia of the American Constitution states that hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation". There is no single definition of what constitutes "hate" or "disparagement". Legal definitions of hate speech vary from country to country.

<span class="mw-page-title-main">Fighting words</span> Speech or writing intended to incite hatred or violence

Fighting words are spoken words directed to the person of the hearer which would have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace.

In criminal law, incitement is the encouragement of another person to commit a crime. Depending on the jurisdiction, some or all types of incitement may be illegal. Where illegal, it is known as an inchoate offense, where harm is intended but may or may not have actually occurred.

<span class="mw-page-title-main">LGBT rights in South Africa</span>

Lesbian, gay, bisexual, and transgender (LGBT) people in South Africa have the same legal rights as non-LGBT people. South Africa has a complex and diverse history regarding the human rights of LGBT people. The legal and social status of between 400,000–over 2 million lesbian, gay, bisexual, transgender and intersex South Africans has been influenced by a combination of traditional South African morals, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition.

<span class="mw-page-title-main">Legality of Holocaust denial</span> Overview of anti-antisemitic legislation

Between 1941 and 1945, Nazi Germany perpetrated the Holocaust: a large-scale genocidal campaign in which approximately six million European Jews were systematically murdered throughout German-occupied Europe. Since World War II, several countries have criminalised Holocaust denial—the assertion by antisemites that the genocide was a myth, fabrication or exaggeration. Currently, 17 European countries, along with Israel and Canada, have laws in place that cover Holocaust denial as a punishable offence. Many countries also have broader laws that criminalise genocide denial, including that of the Holocaust. Among the countries that have banned Holocaust denial, Russia, Austria, Germany, Hungary, Poland, and Romania have also banned Nazi symbols. Any expression of genocide justification is also a criminal offence in several countries, as is any attempt to portray Nazism in a positive light.

<span class="mw-page-title-main">Freedom of speech by country</span>

Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless, the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms and there are different approaches to issues such as hate speech, obscenity, and defamation laws.

<span class="mw-page-title-main">Hate speech laws in Canada</span> Canadian laws relating to hate speech

Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory.

The hate speech laws in Australia give redress to someone who is the victim of discrimination, vilification, or injury on grounds that differ from one jurisdiction to another. All Australian jurisdictions give redress when a person is victimised on account of colour, ethnicity, national origin, or race. Some jurisdictions give redress when a person is victimised on account of colour, ethnic origin, religion, disability, gender identity, HIV/AIDS status or sexual orientation.

Defamation of religion is an issue that was repeatedly addressed by some member states of the United Nations (UN) from 1999 until 2010. Several non-binding resolutions were voted on and accepted by the UN condemning "defamation of religion". The motions, sponsored on behalf of the Organization of the Islamic Conference (OIC), now known as the Organisation of Islamic Cooperation, sought to prohibit expression that would "fuel discrimination, extremism and misperception leading to polarization and fragmentation with dangerous unintended and unforeseen consequences". Religious groups, human rights activists, free-speech activists, and several countries in the West condemned the resolutions arguing they amounted to an international blasphemy law. Critics of the resolutions, including human rights groups, argued that they were used to politically strengthen domestic anti-blasphemy and religious defamation laws, which are used to imprison journalists, students and other peaceful political dissidents.

Hate speech laws in England and Wales are found in several statutes. Expressions of hatred toward someone on account of that person's colour, race, sex, disability, nationality, ethnic or national origin, religion, gender reassignment, or sexual orientation is forbidden. Any communication which is threatening or abusive, and is intended to harass, alarm, or distress someone is forbidden. The penalties for hate speech include fines, imprisonment, or both.

Racism in South Africa can be traced back to the earliest historical accounts of interactions between African, Asian, and European peoples along the coast of Southern Africa. It has existed throughout several centuries of the history of South Africa, dating back to the Dutch colonization of Southern Africa, which started in 1652. Before universal suffrage was achieved in 1994, White South Africans, especially Afrikaners during the period of Apartheid, enjoyed various legally or socially sanctioned privileges and rights that were denied to the indigenous African peoples. Examples of systematic racism over the course of South Africa's history include forced removals, racial inequality and segregation, uneven resource distribution, and disenfranchisement. Racial controversies and politics remain major phenomena in the country.

AfriForum is a South African non-governmental organisation focused mainly on the interests of Afrikaners, a subgroup of the country's white population. AfriForum has been described as a "white nationalist, alt-right, and Afrikaner nationalist group", though this description is rejected by the organisation's leadership, who refer to themselves as a civil rights group.

<span class="mw-page-title-main">International Convention on the Elimination of All Forms of Racial Discrimination</span> 1969 United Nations human rights instrument

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. The Convention also requires its parties to criminalize hate speech and criminalize membership in racist organizations.

<i>An Act to amend the Canadian Human Rights Act and the Criminal Code</i> Canadian federal law relating to gender identity

An Act to amend the Canadian Human Rights Act and the Criminal Code is a law passed in 2017 by the Parliament of Canada. It was introduced as Bill C-16 of the first session of the 42nd Parliament. The law adds gender expression and gender identity as protected grounds to the Canadian Human Rights Act, and also to the Criminal Code provisions dealing with hate propaganda, incitement to genocide, and aggravating factors in sentencing.

Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.

Online hate speech is a type of speech that takes place online with the purpose of attacking a person or a group based on their race, religion, ethnic origin, sexual orientation, disability, and/or gender. Online hate speech is not easily defined, but can be recognized by the degrading or dehumanizing function it serves.

Hate speech is public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation. Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation".

<i>Qwelane v South African Human Rights Commission</i> South African legal case

Qwelane v South African Human Rights Commission and Another is a 2021 decision of the Constitutional Court of South Africa on the constitutionality of a statutory prohibition on hate speech. The court found that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was unconstitutional insofar as it included the vague term "hurtful" as part of the definition of prohibited hate speech.

Freedom of expression in South Africa is guaranteed in section 16 of the Constitution of South Africa. This right to freedom of expression, which is regarded as being of fundamental importance to South African constitutional democracy, was first recognised in the Interim Constitution of 1993. The right is not unqualified — certain forms of expression fall outside of the ambit of section 16(1), and the right is capable of limitation in accordance with the general principles of South African constitutional jurisprudence. Application of the right to freedom of expression by the courts has had a considerable impact on, amongst other fields, South African criminal law, defamation law and trademark law.

References

  1. ↑ "Prevention and Combating of Hate Crimes and Hate Speech Bill, 2018 » Publication of explanatory summary of the prevention and combating of the Bill". Greengazette.co.za. Retrieved 5 October 2018.
  2. ↑ "Legislation - Parliament of South Africa". Parliament.gov.za. Retrieved 5 October 2018.
  3. 1 2 3 4 5 6 7 8 "PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL" (PDF). Parliament.gov.za. Retrieved 25 October 2018.
  4. 1 2 "South African Move on Hate Speech a Step Too Far". Human Rights Watch. 21 February 2017. Retrieved 5 October 2018.
  5. 1 2 "Against the Hate Bill: The HSF's submission - DOCUMENTS | Politicsweb". www.politicsweb.co.za. Retrieved 3 December 2018.
  6. 1 2 "Against the Hate Bill: The IRR's full submission - DOCUMENTS | Politicsweb". www.politicsweb.co.za. Retrieved 4 December 2018.
  7. 1 2 "S. African gov't introduces hate speech bill to Parliament". 30 May 2018.
  8. 1 2 "Justice/Legislation/Hate Crimes Bill". www.justice.gov.za. Retrieved 3 December 2018.
  9. ↑ Schweppe, Jennifer; Walters, Mark Austin (26 May 2016). The Globalization of Hate: Internationalizing Hate Crime?. Oxford University Press. ISBN   9780191088513.
  10. ↑ Mano, Winston (30 May 2015). Racism, Ethnicity and the Media in Africa: Mediating Conflict in the Twenty-First Century. I.B.Tauris. p. 28. ISBN   9781780767062.
  11. ↑ Sisk, Timothy (14 March 2017). Democratization in South Africa: The Elusive Social Contract. Princeton University Press. ISBN   9781400887392.
  12. ↑ MacKinnon, Aran (2004). The Making of South Africa. Upper Saddle River, New Jersey: Prentice Hall. pp. 290–291. ISBN   9780205795499.
  13. ↑ Harris, Bronwyn (2004). Arranging prejudice: Exploring hate crime in post-apartheid South Africa. Cape Town.{{cite book}}: CS1 maint: location missing publisher (link)
  14. 1 2 3 Traum, Alexander (2014). "Contextualising the hate speech debate: the United States and South Africa". The Comparative and International Law Journal of Southern Africa. 47 (1): 64–88. JSTOR   24585817.
  15. ↑ "CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA" (PDF). Justice.gov.za. Retrieved 25 October 2018.
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