As a starting point, it is important to keep in mind that the Constitution does not protect hate speech but the expression prohibited must fall within the very narrow margins of hate speech in terms of section 16(2)(c) of the Constitution. Furthermore, the provision of criminal measures to combat hate speech is not a unique phenomenon. The European Union (EU) for instance, specifically requires its Member States, in terms of a 2008 Framework decision, to provide criminal measures to fight the consequence of racial hatred and xenophobia. Canada, whose Constitution provided a guideline to the enactment of the South African Constitution, also provides for the criminal offence of “Public incitement of hatred”.  So why the outcry in South Africa?

The answer to the above appears to be quite simple. First, the Bill is not concerned with hate speech, in the Constitutional sense. In any event, even if the Bill dealt with the prohibition of constitutionally aligned hate speech, the offense has to be narrowly defined and it has to be shown that there is a dire need in society to address hate speech by means of criminal law – over and above the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (PEPUDA).

The ill-defined offence under the guise of hate speech in the Bill, is a far cry from hate speech in section 16(2)(c) of the Constitution, which relates to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. To qualify as hate speech in terms of the Constitution it has to be shown that these vile expressions of emotion have the potential to incite others to cause harm to a vulnerable group of people. Even though physical or emotional “harm” does not necessarily have to occur, there must be a reasonable likelihood considering the context that the expression will cause harm.

The offence of hate speech in the Bill in fact prohibits several forms of expression and it is not limited to “advocacy of hatred” based on “race, ethnicity, gender or religion” and which “constitutes incitement to cause harm”. Not only is there a list of 20 undefined prohibited grounds, ranging from the obvious such as “gender” and “race”, to the more questionable grounds of “occupation or trade”, but there is also a clear break from the need to show a reasonable likelihood of harm occurring, as demanded by the Constitution. Therefore, the Bill in fact deals with the criminalisation of various forms of expression, which can only be justified by the limitation clause in the Constitution.

In brief, the limitation inquiry concerns a balancing of the rights to dignity and equality, against the right to freedom of expression. One must consider whether the extent of the limitation can be justified considering lesser restrictive means to uphold dignity and equality. On this analysis, the list of undefined forms of “communication”, which range from a “gesture” to a “representation or reference” communicated to “one or more persons”,  does not necessarily relate to public forms of expression – unlike foreign law approaches. Furthermore, undefined, and subjective words such as “abusive or insulting” which either “bring into contempt or ridicule” a person or group of persons, cannot reasonably be associated with extreme contempt which could objectively expose a vulnerable group of people to further attacks. It is also not clear how “occupation or trade” could ever be considered unchangeable markers associated with the dignity of a natural person. This also links up to the concern that a “victim” in this Bill should only be a natural person, as a juristic person is not logically a carrier of these inherent qualities of dignity. The absurdity of the offence could see a satiric cartoon directed at a Member of Parliament (MP) being labelled as “hate speech”. Lastly, the law already provides civil remedies in terms of PEPUDA for victims of hate speech and there is the possibility for the Equality Court to refer the matter to the Director of Public Prosecutions. There are also no statutory defences to this offence, unlike other jurisdictions, notably the Canadian Criminal Code.

As such, the offence of hate speech will likely not muster constitutional scrutiny. Before criminal measures are drafted, there needs to be legislative reform to allow PEPUDA to effectively deal with hate speech, in line with the Constitution. The law too, should reflect modern forms of communication. This Bill unjustifiably infringes on freedom of expression.  The hard-fought right to freedom of expression is a key mechanism to challenge discrimination and oppression, and it should be fiercely protected. 

By Ms Christine Botha: Legal Officer, Centre for Constitutional Rights