The dangers of using criminal sanctions to limit freedom of expression and to enforce social cohesion

23 November 2023

On 15 November 2023, Parliament’s second house of Parliament - the National Council of Provinces (NCOP) - passed the Prevention and Combating of Hate Crimes and Hate Speech Bill despite countless submissions from various stakeholders opposing the Bill’s clear curtailment of the constitutionally-entrenched right to freedom of expression. The Bill will now go to the National Assembly for concurrence.

Although the NCOP proposed reducing the maximum sentence for an offence of hate speech from eight to five years, “with the understanding that the court will have a discretion” in sentencing offenders, the amendment does little to alleviate concerns that the Bill’s overly-broad definition of harm would have a crippling effect on people’s willingness to express themselves openly on controversial issues.

Under the Bill, “harm” warranting criminal sanction would include any “substantial emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual.” “Social detriment means detriment that undermines that social cohesion amongst the people of South Africa.”

In South Africa’s complex multi-racial, multi-linguistic and multi-faith country, where much of the legitimate political debate centres on widely differing, but sincerely held, views on race, culture, language and religion, it is dangerous to transcribe “social cohesion” through legislation. It was for this reason that the authors of the Constitution, in line with international law, drafted very limited exceptions to the right to freedom of expression contained in section 16(2).

It does not extend to propaganda for war; incitement of imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to do harm. Accordingly, the core purpose of curbing hate speech is to ensure that extreme public manifestation of hatred does not expose a vulnerable group of people to further discriminatory attacks.

Members of the NCOP described the Bill “as one of those bills that was critical in the lives of South Africans… to deal with hate crimes and hate speech which South Africans experience on a daily basis”, and that “this Bill fills that gap and ensures every citizen is respectful towards others”. However, that was not the Bill’s real purpose at all: the broad definitions of harm and social cohesion, and the draconian prison sentences prescribed for offenders, will force citizens and journalists alike to self-censor – the most insidious form of censorship.

As the Foundation has noted in numerous statements to Parliament, the Bill is an unjustifiable limitation of the right to freedom of expression, it does not align with international law, and other remedies are available and have been successfully relied on to deal with instances of hate speech. Without freedom of expression, the accountability, responsiveness and openness required by our system of democratic government cannot be assured. The Bill is unnecessary and unconstitutional, and should be challenged in the courts at the earliest opportunity.

Issued by FW de Klerk Foundation, 23 November 2023