Can social change be legislated?
11 June 2018
The Prevention and Combating of Hate Crimes and Hate Speech Bill was made available for public comment in 2016, after a protracted process that commenced almost 10 years ago.
According to a spokesperson for the Department of Justice and Correctional Services, 75 854 submissions were received from organisations and individuals in response. In the light of these responses, the Department submitted a revised Bill [B9 - 2018] to Parliament in April 2018. While there has been mostly agreement about the imperative for legislation on hate crimes, which is repugnant to most South Africans of every hue, the revisions introduced most recently to the Bill hinge on the latter part of the title of the Bill.
The most recent changes - presumably to assuage the heavy criticism expressed by free speech and expression advocates, constitutionalists and average folks concerned with real and pressing matters requiring attention in the country - have resulted in revisions to the Bill that exclude from the provisions of the Bill the following:
1. Any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a);
2. any academic or scientific inquiry;
3. fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996; or
4. the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a).
The sting in the tail of course to the above is that it is incumbent on the Director of Public Prosecutions to exclude these.
The changes, however, do not address the fundamental concern expressed about the punitive and arguably unconstitutional attempt to criminalise freedom of speech and expression, both in public and private spaces, including by gestures and bodily expressions that are construed as insulting. While this issue has been argued ad nauseam, it is telling that the fundamental justification for the Bill was reiterated by the Deputy Minister of Justice and Correctional Services, John Jeffery, in March 2018. Jeffery said that, “there is no question that incidents of racism and racial discrimination are all to frequent in our society and we are confident that the Bill, once passed, will contribute to eradicating not only racism, but all forms of discrimination, in our country”.
Few would deny that race relations are brittle and on a knife’s edge and many yearn for a country in which harmony, respect and tolerance are the norm. However, the question remains that of whether the words and sentiments expressed by the Deputy Minister and the justification for the promulgation of the Prevention and Combating of Hate Crimes and Hate Speech Bill can punish away racism, sexism and intolerance captured in the list of 15 characteristics outlined in the Bill.
Perhaps the two most significant issues for reflection and analysis are as follows:
1. Between the Constitution that creates and institutionalises the “floor”, the doctrine of crimen injuria and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA), which extends and deepens the rights to human dignity, freedoms and non-discrimination, there is a labyrinth of law that can and must deal with those espousing venom and toxicity - from the Sparrows to the Malemas. In addition, there exist several Chapter 9 bodies to promote, protect and investigate cases of discrimination, including referrals to the justice system.
2. The philosophical debate around the sentiments that undergird the Bill warrant debate and discussion. Key to this is an interrogation of if and how legislation like the above can act as a preventative in an escalating climate of racial taunting and abuse. Related to this question is that of whether draconian and punitive responses will change or even curtail behaviours.
Despite the Deputy Minister’s confidence expressed in his statement above, legislation alone is no guarantee that racism, prejudice and discrimination will disappear. On the contrary - and as previous articles from the Centre for Unity in Diversity have outlined - the prospect of driving these behaviours underground is more than a distinct possibility, and these will get ever harder to expose and deal with decisively.
Social and political change, as was experienced in South Africa in 1994, came with an expectation of an upward trajectory that would result in healthy dividends for all. The Constitution outlined a vision and values for a society emerging from an apartheid past to one that enjoined each to the other as fellow South Africans.
Social changes are not predictable nor easy and as the Encyclopaedia Britannica proffers it is about, “the alteration of mechanisms within the social structure, characterised by changes in cultural symbols, rules of behaviour, social organisations, or value systems”. These processes require tolerance, delicacy and are ultimately about human behaviours and practices. It also requires of a polity to create the necessary conditions for the best human impulses to emerge. These are both material and non-material ones.
The country, particularly over the Zuma years, has witnessed an increasingly threatening and corrosive tone to race relations, but the response of the State is to attempt to legislate all and sundry. The avenues to educate, investigate and prosecute acts of racism and discriminatory behaviours already exist, and like the issue of land, effective use must be made of the range of tools available.
The Prevention and Combating of Hate Crimes and Hate Speech Bill will not create the conditions for lasting social change. It is when all South Africans are assured that they belong, that their aspirations will be met through economic growth and skills development. Further, a vibrant and responsive education and health care system and a functioning system of government and governance will turn the tide and fear, anger and unease with the other is replaced by a commitment to a common future and lasting social change. Like with smoking, the realisation of harm caused may be a better deterrent than a State that limits rights.
Ms Zohra Dawood is Director, Centre for Unity in Diversity.