Doing More Harm Than Good
The publication of the Hate Crimes and Hate Speech Bill, on which public comments and submissions are due by Tuesday the 31st January, has elicited a lot of interest and concern from the religious community.
Before I go any further, let me say upfront that I commend the Department of Justice for what I believe to be a bonafide effort to prevent and combat hate crimes and hate speech and to create an environment where South Africans can peacefully co-exist, despite our differences. Hate speech and hate crimes have no place in a society that upholds human dignity.
However, sections of the religious community (and I share their view) are concerned that the Bill, particularly the “hate speech” component, is defined so broadly that it will violate other constitutional rights, including particularly freedom of expression (section 16 of the Constitution) and freedom of religion, belief and opinion (section 15 of the Constitution).
It is indeed the sad reality of both our past and present that not everyone
In South Africa appreciates the beauty of our pluralistic and diverse
Society (what I call our unity in diversity), and that this very disdain
“Difference” sometimes drives people to commit the most heinous
Of crimes against those who are “different” to them.
This reality, however, should not lead to the creation of a substantive offense of “hate crime”, as the Bill purports to do, that may further divide society. But if the creation of such an offense is inevitable, then the relevant law must be as tight and unambiguous as possible.
The proposed definition, and scope, of “hate speech” in the Bill, is over-broad and may be unconstitutional.
Section 16 of the Constitution guarantees freedom of speech as a fundamental human right. In terms of s 16(2), the only speech that is not protected by this guarantee (i.e. that amounts to “hate speech”), is “propaganda for war, incitement of imminent violence, and the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”
Comparing the definition of “hate speech” in the Constitution and the Bill, it is clear that the definition in the Bill is much wider.
In terms of the Constitution, speech will only qualify as “hate speech” if it amounts, in the first instance, to “advocacy of hatred”. This implies more than just a neutral or casual statement. It includes a coercive element, deliberate intent and effort to convince another to adopt a particular attitude or position. It requires “calling for” or “making a case for” hatred, and is therefore a much higher threshold than merely communicating to someone “in a manner that … is threatening, abusive or insulting”, as contemplated by the Bill.
Further, in terms of our Constitution, in order to qualify as “hate speech”, the speech, in the second instance, also has to “constitute incitement to cause harm”, i.e. that there is a pressing, or stirring up, of someone to act in a violent or physically harmful manner.
In this regard, it is important to note that South African courts have, perhaps as recognition of the importance of the right to freedom of expression, recognized that however offensive a statement may be, it does not rise to the level of proscribed hate speech until it also tends to “incitement to cause harm”. And this is where one feels the Bill may be going beyond the boundaries set by our Constitution.
Also, in terms of the Constitution, the “advocacy of hatred” must be based on one of the listed grounds, namely race, ethnicity, gender and religion. This list is a closed list, and does not, at least in the Constitution, extend to other grounds. In terms of the Bill however, “hate speech” is not restricted to the listed grounds and appears to be a rather random selection, including some of the prohibited grounds in the Constitution while leaving out some others, and additionally including some other arbitrary characteristics.
The inclusion of the words “and which demonstrates a clear intention … to incite others to harm … or stir up violence against, or bring into contempt or ridicule …” in the Bill’s definition of “hate speech”, is itself problematic.
Firstly, from whose point of view would it be judged if there was “a clear intention” to ridicule the “victim” - from the speaker’s point of view or from the hearer’s point of view? Or subjectively, from the hearer’s / victim’s point of view?
Also, the use of the word “intention” is problematic, as “intention” in the broad sense of the word includes “legal intention” (doles eventualis), i.e. objectively foreseeing the possibility that an act (in this instance, the speaker’s speech) may have a certain consequence that, for example, could cause someone to feel threatened, abused, insulted, ridiculed or brought into contempt.
Practically, should a pastor from the pulpit say that prostitution, according to the Bible, is sinful, that may well qualify as “hate speech” in terms of the Act. The argument would be that the pastor should have foreseen the possibility that on that particular Sunday, a prostitute might have been in the church and further that saying prostitution is wrong might have offended her, and that he nonetheless went ahead and said that prostitution is wrong. He thus committed “hate speech” based on “occupation or trade”, and if found guilty, could be punished with a fine and/or up to three years’ imprisonment. That could lead to all kinds of unintended consequences and polarize society even further.
Now, no one is saying prostitutes should be hated and not welcome in church. God forbid. The gospel would have no relevance on earth. In fact, Jesus showed mercy and love to two women in the Bible who could easily have fitted the label “prostitute”. Others in his generation, especially the super holy Pharisees, were scandalized that he should interact with such women.
The other area of a huge concern is how department of justice is rushing the processes , the tight deadlines that has been given for public comments on such a contentious issue has in itself not gone down well with many religious leaders and hope the department will take note on these serious concerns.
PASTOR RAY IS PRESIDENT OF RHEMA FAMILY CHURCHES AND CO-CHAIRPERSON OF NATIONAL RELIGIOUS LEADERS ( NRLC)
