HATE SPEECH

The Prevention and Combatting of Hate Crimes and Hate Speech Bill is just one of a number of extremely disturbing bills that are trundling their way through the legislative process. Its ostensible goal is “to give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia…”                                                                                            

However, the Bill’s actual purpose may be found in a statement of the ANC’s National Executive Committee on 27 March 2017 in which it called on Parliament “to fast-track the promulgation of the Prevention and Combating of Hate Crimes and Hate Speech Bill which criminalizes racism and metes out harsh consequences for those in our midst who continue to perpetuate it.”  The NEC added that “where people refuse to be educated on their wrongs, they must be punished by the law. Such include opposition leaders who make utterances praising colonialism.” 

The ANC was, of course, referring to Helen Zille’s controversial tweet on 16 March 2017, following a visit to Singapore that “for those claiming the legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc.”  The chilling implication of the ANC statement was that a leading opposition politician should be harshly punished for the expression of a political opinion that although controversial, was entirely permissible in terms of her right to freedom of expression in section 16 of the Constitution. 

According to the Bill any person who ‘intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or incite harm; or promote or propagate hatred” against 15 categories of people would be guilty of hate speech.    

“Harm” is defined as “any emotional, psychological, physical, social or economic harm”.   The 15 protected categories include age, culture, race, gender, sexual orientation, religion, language and HIV status. 

Any person convicted of hate speech could face imprisonment for three years for a first offence and for five years for subsequent offences.   

Fortunately, the latest version of the Bill provides an exemption from hate speech for “any bona fide artistic performance or expression; any academic or scientific enquiry; fair and accurate reporting or commentary in the public interest; and bona fide religious communication and proselytising.  But what about politicians and ordinary citizens participating in robust political debate? Why, in a system based on equality and on everyone’s right to receive and impart information and ideas – should artists, academics, journalists and religious practitioners enjoy greater rights to freedom of expression than politicians and ordinary citizens? 

In its recent judgement in Qwelane v. the South African Human Rights Commission the Constitutional Court set a higher test for hate speech.  It struck down the use of the word “hurtful” in section 10(1) of the Equality Act and gave Parliament 24 months to amend the Act.  In the Court’s view “expressions that are merely hurtful, especially when understood in everyday parlance, are insufficient to constitute hate speech.  It is well understood that the prohibition of hate speech is not aimed at merely offensive speech, but that offensive speech is protected by freedom of expression.”    

The requirement now is that hate speech must comply with the remaining criteria in Section 10(1) of the Equality Act, read conjunctively, - I.e. that it must ‘incite harm and promote or propagate hatred’.   In addition, the Court ruled that “hate speech prohibitions …should not extend to private communications, because that would be incongruent with the very purpose of regulating hate speech…”   In terms of this view, the Bill’s definition of communication “to one or more people” – which could include private communication – might have to be reconsidered. 

Although the Bill purports to give effect to the requirements of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) it should, perhaps, have given greater attention to ICERD’s own guidelines on hate speech.    These include consideration of the context of the impugned speech in terms of - 

• the content and form of speech; 
• the economic, social and political climate prevalent at the time the speech was made; 
• the position or status of the speaker; 
• the reach of the speech; and 
• the objectives of the speech.

ICERD’s recommendations - 

• warned against the criminalisation of unimportant offenders (such as the Penny Sparrows; the Nick Catzevelos’s and Matthew Theunissens?);
• expressed particular concern with regard to racist expressions emanating from public authorities or public institutions – “especially statements attributed to high-ranking officials” (such as President Zuma’s singing of the ‘Kill the Boer’ song and Julius Malema’s recurrent racist rants?); 
• insisted that the “expression of opinion about historical facts” should not be prohibited or punished; and, most importantly,
• stressed that “independent, impartial and informed judicial bodies are crucial to ensuring that the facts and legal qualifications of individual cases are assessed consistently with international standards of human rights.”

Aye, there’s the rub.   

The SAHRC – which is ICERD’s agent in South Africa – openly proclaims a double standard when considering hate speech allegations involving black and white South Africans.   Media reports indicate that during an interview in April 2019 SAHRC representative, Mrs Priscilla Jana, admitted that the Commission is "purposefully lenient to black offenders in incidents concerning racial utterances made to white victims because of the historical context" and that "racism from whites towards other races was more pervasive”.   How can a Chapter IX institution, supposedly dedicated to upholding the constitutional rights of all South Africans, so cavalierly dispense with right of white South Africans to equal protection and benefit of the law – and to protection against unfair discrimination on the basis their race?  

In its dismissal last year of complaints against Julius Malema for remarks that he made on 7 November 2016 that he was not calling for the slaughtering of all white people – “at least not for now” the SAHRC stated that: 

“The statement may be construed as ‘hurtful’ by a white audience. However, a consideration of context requires that the identity of both the target group and the offender should be taken into account. The white group is socio-economically powerful. In contrast, Mr Malema belongs to the vulnerable black population group, which remains predominantly poor and landless.”  

The SAHRC then went on to justify “robust speech and the ability to express hurt, pain and anger” by “those who see themselves as oppressed and disempowered”.  It added the following comment regarding the hurtfulness of hate speech: 

“Furthermore, ‘hurtful’ should be interpreted as meaning ‘severe psychological impact’, which the statement viewed in its context would not have for most South Africans. To the extent that the statement might have a severe impact on a proportion of white South Africans, for example farmers who feel unsafe, it would still fail the objective test for hate speech.  (Emphasis added) 

Thus, in the SAHCR’s view, the test of hurtfulness is not whether it has “a severe impact’ on a targeted minority – but what the view of “most South Africans” might be.    

Malema’s statement ticked all the contextual requirements for hate speech listed by ICERD. Nevertheless, the SAHRC brushed aside his implicit threat of genocide at some later stage.   Also, his highly prejudicial version of history that “white people” slaughtered peaceful Africans “like animals” was clearly intended to sweep up racial hatred.  The SAHRC simply ignored Malema’s incitement to cause harm.  What did it think Malema’s intention was when he told his followers to “disturb the peace of white people”?  Did it really think that the illegal occupation of the land of white farmers could be achieved peacefully and without causing them ‘harm’? 

The SAHRC’s fundamental mistake is to confuse the relative economic well-being of white South Africans with any shred of continuing political power or dominance.  The country’s white and Indian minorities are economically prosperous – but are politically disempowered.  It is precisely such communities that throughout history have proved to be the most vulnerable – the whites in Zimbabwe, the Indians in East Africa, the Chinese in Malaysia and Indonesia – and most tragically – the Jews in Europe. 

In its 27 March 2017 statement - in which it called for the fast-tracking of the Bill - the ANC reiterated its core policy position on the resolution of the “national grievance” that “our liberation remains incomplete without the return of the land to the people. As President Tambo asserted  ‘to allow the existing economic forces to retain their interests intact is to feed the root of racial supremacy’”.   

This would appear to be an unambiguous threat to harm one of South Africa’s communities on the basis of its race.  One wonders how it would stack up against the hate speech provisions of the Bill – and the criteria recommended by ICERD – and how it would be adjudicated by our courts and by the SAHRC?  

Dave Steward is Chairman of the FW de Klerk Foundation.