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Could the Hate Speech Bill criminalise all speech?

The Hate Speech Bill should cause South Africans sleepless nights, as it criminalises virtually all speech of any consequence. Even amid controversy arising from President Jacob Zuma's appointment habits and state capture, the Bill is still the most pressing threat facing South African freedom today.
© Ion Chiosea – 123RF.com
Civil society has come out unanimously against the Bill, and for good reason. As I and many others have written before, the Bill provides that you commit the crime of “hate speech” by simply “insulting” someone else with the intention to bring them into “contempt” or to “ridicule” them based on anything from “belief” to “occupation”. You can then be put in prison for up to three years.

Former judge Rex van Schalkwyk recently wrote an article about the Prevention and Combating of Hate Crimes and Hate Speech Bill (the Hate Speech Bill), problematising the fact that under this law people could go to the National Prosecuting Authority to help them get retribution against those who have offended them. Lawyer jokes are just one example of how this perverted situation could play out. If you say “all lawyers are blood-sucking parasites!”, you will have committed hate speech.

The Bill, further, defeats itself in the guise of protecting “belief”, for, if you say “racists are scum and should be ostracized!”, you are, yet again, committing hate speech, because racism is a belief, and belief is protected. The NPA will then be placed in the awkward position of having to institute charges against an anti-racism activist because the country’s supposed anti-racism law obliges it to.

Deputy Minister of Justice John Jeffery said that government will not use the Hate Speech Bill to penalise comedians and individuals who are simply ‘offensive’. He, like seemingly everyone else in government, says that the proposed law will only be used against real malicious bigots who thrive on violating the dignity of other vulnerable South Africans. But Jeffery was contradicted several weeks ago when the National Executive Committee of the ANC said that the Hate Speech Bill must be fast-tracked through Parliament so it can be used against people like Helen Zille, who tweeted that colonialism was not “all bad” – a silly and offensive tweet, no doubt, but certainly not truly hate speech.

It is becoming increasingly clear that the intentions behind the Bill are not as noble as made out to be. Indeed, in the case of Zille, she is a politician in the official opposition and the governing party is proposing to place her in jail because of something she said. As civil society has pointed out in the multitude of submissions to government on the Bill, the proposed law in its current form can be used for political persecution. It is clear now that, at least in part, political persecution is on the agenda.

Political persecution aside, the Bill can be used to outlaw just about any potentially offensive or confrontational speech imaginable.

If you call your teenage son a ‘bad learner’ at school who should study harder, you are committing hate speech. If you say the British are pompous or Afrikaners are patriarchal, you are committing hate speech. If you say your uncle is an annoying old man, you are committing hate speech. If you say capitalists are greedy, you are committing hate speech. The list goes on. This Bill effectively abolishes freedom of expression, entirely, in South Africa.

While we may be hopeful and confident that the Hate Speech Bill will not survive our courts and the inevitable test of constitutionality, we must remain concerned that legislation of this nature is on the agenda in a constitutional democracy at all.

Apartheid’s Suppression of Communism Act is perhaps the most obvious equivalent of the Hate Speech Bill. Under it, any speech remotely critical of the regime of the day could be construed as ‘communist propaganda’ and lead to imprisonment. The enactment of our Constitution brought an end to the idea that government could control expression in such a way. But, clearly, not everyone is convinced that a strong respect for constitutionalism and individual liberty is what South Africa needs.

South Africans should be very worried about the Hate Speech Bill and should use every avenue and opportunity to express their disapproval of this totalitarian legislation.
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About the author

Martin van Staden is legal researcher at the Free Market Foundation and Academic Programs Director of Students for Liberty in Southern Africa.
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