The expression prohibited in terms of the offence does not relate to hate speech as understood in terms of section 16(2)(c) the Constitution, which must relate to “advocacy of hatred” based on the prohibited grounds of “race, ethnicity, gender or religion”,andmust constitute “incitement to harm”. These critical elements of hate speech are aligned with international law. Regulation of expression by law (and as an absolute last resort by means of criminal law) would only be justified if it related to this narrow category of expression prohibited in terms of the Constitution. Anything outside the limited parameters of section 16(2) of the Constitution infringe on the right to freedom of expression. In fact, drastic, life-altering penalties are proposed to regulate constitutionally-protected expression. In our analysis, this drastic measure proposes a severe limitation on the right to freedom of expression, which is vital for a young democracy to stimulate political and social debate. This limitation cannot be justified as a reasonable limitation to the right to freedom of expression in terms of section 36 of the Constitution.

The Foundation proposes that before such a drastic statutory criminal measure is proposed to regulate hate speech, an urgent review and reform of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) is required. There must be clear evidence that there is a pressing societal need for additional criminal measures to regulate hate speech. Only then, as an absolute last resort, should statutory criminal measures be considered. In this instance, it would have to be narrowly limited to hate speech as understood in terms of the Constitution, with clear definitions for each element of the offence. As it currently stands, the Bill will have a chilling effect on political and social discourse. We submit the offence of hate speech should be removed in its entirety from the Bill.

Issued by the FW de Klerk Foundation
17 February 2019