Statement on the Signing of the Hate Speech Bill into Law
10 May 2024
Yesterday, 9 May 2024, President Cyril Ramaphosa signed into law the Preventing and Combating of Hate Crimes and Hate Speech Bill of 2018 (recognised as the “Hate Speech Act”), a move that the FW de Klerk Foundation views with deep concern. This legislation, aiming to criminalise hate crimes and hate speech, sets a dangerous precedent that undermines the very essence of freedom of expression and risks constitutional overreach.
In response to the signing of the Hate Speech Bill into law, Ismail Joosub, Legal Officer of Constitutional Programmes, stated, "While the legislation aims to regulate hate speech across all forms of communication, including social media, its provisions have raised concerns about overreach and ambiguity." He continued, "Our submission to the National Council of Provinces regarding the Bill raises constitutional concerns, arguing that the Bill’s hate speech provisions exceed constitutional limits and unjustifiably restrict freedom of expression essential for democracy, thus contravening section 16 of the Constitution."
One contentious aspect of the Act is its treatment of religious expression. While it exempts certain forms of communication, including religious expression, from being classified as hate speech, the Act’s language is open to interpretation and could lead to unintended consequences. For instance, insults directed at one's profession could be deemed hate speech under the Act’s provisions, potentially resulting in imprisonment.
While the Act includes exclusions for artistic creativity, academic inquiry, journalism in the public interest and religious convictions or beliefs (except where there is incitement to cause harm), the definition of “harm” is broad, encompassing emotional, psychological, physical, social, or economic detriment that undermines human dignity.
The Foundation recognises the importance of combating racism, discrimination and intolerance. However, it firmly believes that this Act’s approach is deeply flawed and potentially unconstitutional.
“The limitation of the right to freedom of expression would in no way be justifiable in an open and democratic society based on human dignity, equality and freedom and would accordingly fail the test laid down in section 36(e) of the Constitution, because there already exist less restrictive means to achieve its ostensible purpose”, says Joosub.
The Foundation deems existing legislation, like the Promotion of Equality and Prevention of Unfair Discrimination Act (“PEPUDA”), adequate and believes the Act’s severe penalties and lack of clear definitions violate the rule of law, specified in section 1(c) of the Constitution.
The provisions in the new Act go far beyond the limitations on freedom of expression permitted in section 16.2 of the Constitution and the definition of hate speech in the PEPUDA, as confirmed by the Constitutional Court in the Qwelane v South African Human Rights Commission and Another.
By imposing penalties of imprisonment for a term not exceeding five years or a fine, or both, the law risks inhibiting open dialogue and constructive engagement on important social issues.
In conclusion, the signing of the Hate Speech Bill into law raises significant concerns. While recognising the need to combat discrimination, the Foundation believes the Act's approach risks undermining freedom of expression and may overstep constitutional boundaries, highlighting the importance of upholding constitutional principles in law-making.
Issued by FW de Klerk Foundation, 10 May 2024
