In a free country the government is not the parent of society. Instead, it is an institution that safeguards a framework for voluntary interaction, cooperation, and competition between the people.
Laws like the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill are founded in a worldview that sees government more in the former role, which necessarily threatens freedom in South Africa.
Being offensive, indecent, and profoundly hurtful to someone in a free society should be of no concern to government. The defining characteristic of a society that prioritises civil liberty is that these problems are not addressed through legal or political coercion, but through social or economic pressure.
Whether in 2024 or 2029, some kind of opposition formation is going to take office. Assuming that this formation is broadly dedicated to upholding and respecting the Constitution and its very narrow allowance for hate speech regulation, it would need to repeal the Hate Speech Bill.
When a coalition of political parties that excludes the African National Congress (ANC) and Economic Freedom Fighters (EFF), which support the Bill, comes to power in 2024 or 2029, it will need to repeal the Hate Speech Bill, which by then will likely have been signed into law.
President Cyril Ramaphosa recently assented to the Employment Equity Amendment Act, signalling clearly that he is not the leader of an ANC reform faction that takes constitutionality seriously. The Act is clearly unconstitutional, and the President was made aware of this. We should therefore expect the President to also sign the Hate Speech Bill once it is approved by the National Council of Provinces.
Redefining ‘harm’ to ‘detriment’
The Bill’s byzantine definition of ‘hate speech’ comes down to ‘any intentional communication that is harmful or incites harm, and which advocates hatred based on listed grounds.’ This includes the intentional spreading of someone else’s hate speech.
‘Harm’ is defined as ‘substantial emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual or groups’.
This definition performs a trick: the constitutional standard is ‘harm’, yet by redefining harm, the Bill changes the standard to ‘detriment’. Harm is synonymous with the well-known legal concept of ‘damage’ – quantifiable injury. But ‘detriment’ is an ordinary feature of perfectly legitimate social and economic interaction. Government should only be concerned with the actual infringement of rights.
Furthermore, ‘social or economic’ detriment is too wide. Boycott and ridicule are similarly perfectly legitimate aspects of discourse in a free society.
This conception of harm becomes more problematic when one considers the many listed grounds in the Bill, which include such things as ‘gender identity or expression’. The meaning of ‘gender’, ‘gender identity’, and ‘gender expression’ has become infinitely malleable in recent years, and changes almost by the day. It is an intensely and globally contested area of social discourse, and the South African government is being presumptuous by seeking to regulate this discourse.
Imprisoned for words?
Committing hate speech under the Bill could land one in prison for up to eight years, along with a fine. The police – armed enforcers – will be expected to implement this law. Can a society claim to be free when thoughts, discourse, and decency are enforced in this manner? Do we feel comfortable throwing people in prison for what they say?
Of course, the common law has long recognised imprisonment as fair punishment for threatening violence, but under this law not all ‘hate speech’ would need to directly threaten coercion.
The Bill pretends to include certain ‘exemptions’, but these are entirely circular, providing illogically that one would not be guilty of hate speech in the course of artistic, scientific, or journalistic inquiry unless one commits hate speech. A real exemption would be to entirely exempt certain activities from the application of this law per se.
The Bill, notwithstanding the justice department’s reassurances to the contrary, falls foul of international standards as well. For example, the United Nations’s Rabat Plan of Action on the Prohibition of Advocacy of National, Racial, or Religious Hatred states that the criminalisation of expression must only be considered as a last resort and only under strictly justifiable circumstances.
South Africa is already using the criminal doctrine of crimen injuria to combat hate speech, and the Equality Act contains civil penalties that have been effectively utilised in the past. In the 2021 Qwelane judgment, the Constitutional Court set a very high standard for the ‘hatred’ part of civil ‘hate speech’ under the Equality Act at ‘extreme detestation and vilification’ and which risks infringing recognised rights.
If the Hate Speech Bill, along with its definitions of harm and hate speech, is adopted, there will exist a lower standard to meet to send someone to prison for criminal hate speech. A society ceases being free when it is easier to be imprisoned for something than to be found liable for that same thing in civil court.
Simply put, the Bill is entirely unnecessary, and the ‘strictly justifiable circumstances’ the Rabat Plan refers to do not exist in South Africa, unless the Bill can be reformulated to focus specifically on genocidal rhetoric by powerful politicians like the EFF’s Julius Malema.
Repeal imperative
Whether in 2024 or 2029, some kind of opposition formation is going to take office. Assuming that this formation is broadly dedicated to upholding and respecting the Constitution and its very narrow allowance for hate speech regulation, it would need to repeal the Hate Speech Bill.
This will be difficult. Newspaper headlines reading ‘Hate speech law repealed’ would create the false impression that the (new) government is quite content with hate speech poisoning social discourse. Very few politicians are courageous enough to take this step.
The risk is that rather than repealing the Hate Speech Bill, the new government will be tempted to instruct the National Prosecuting Authority to get stricter about which hate speech cases are prosecuted instead. This would be the wrong approach.
If kept on the Statute Book, the Hate Speech Bill will become an entrenched part of South African law, alongside its watering down of freedom of expression.
It would not be enough to enforce the Bill under more limited circumstances. It must be repealed and removed from law to show the government’s commitment to constitutional freedom. The new government must break decisively with the old ANC’s contemptuous attitude towards civil liberty.
Martin van Staden is the Head of Policy at the Free Market Foundation.
Article first appeared on Daily Friend.