(FXI/IFEX) – 4 June 2004 – The Freedom of Expression Institute (FXI) has sent a written submission to the Department of Justice in response to its draft discussion document for a proposed hate speech bill. The objectives of this proposed law are to, among others, criminalise hate speech and also to give effect to the […]
(FXI/IFEX) – 4 June 2004 – The Freedom of Expression Institute (FXI) has sent a written submission to the Department of Justice in response to its draft discussion document for a proposed hate speech bill. The objectives of this proposed law are to, among others, criminalise hate speech and also to give effect to the Constitution as well as South Africa’s commitments to international law, including its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.
In welcoming the proposed legislation, FXI has pointed out that without doubt, the government’s effort to institute such a law is laudable because in the last few years, South Africa has witnessed a shocking rise in incidences of race based and racially motivated crimes. Such acts include painting black people white, making black people eat faeces, dragging black people to death behind bakkies, using black people as guinea pigs for police dog training and very recently, feeding black people to the lions. Gay people have also been subjected to acts of harassment and physical attacks on account of their sexual orientation.
FXI has argued that whereas racism is not the preserve of white perpetrators and though it is underpinned by a power relationship pitting the powerless against the powerful, in practice, it is the poor and weak who often need protection from the Constitution, not the rich and powerful, who can afford the protection of both the civil and criminal justice systems. The institute has pointed out that in South Africa, the net victims of hate crimes have invariably been black people, while ironically, it is the same black people who have been the overwhelming subject of recent hate speech complaints to bodies such as the South African Human Rights Commission. For this reason, the institute has cautioned that we ought to examine carefully how the proposed law will affect the right of the poor and powerless to express themselves freely, given the potential likelihood of their utterances being met with criminal sanctions.
Criticising the many flaws in the draft paper, the institute has argued that the paper appears to take much of its text and wisdom from section 10 of South Africa’s Equality Act, which is itself problematic given that the Equality Act has an overly restrictive and constitutionally suspect hate speech regime. The proposed bill seeks to go even further than the Act in its bid to circumscribe the ambit of free expression in the country. The institute has warned that any attempt to criminalise forms of expression, which merely “hurt”, or are “harmful”, or which merely “intimidate” or “threaten”, is a distinct violation of the right to freedom of expression clause of the Constitution, as the latter only prohibits the much stronger “advocacy of hatred”.
FXI has castigated the hate speech provisions of the Equality Act as well as the provisions of the proposed legislation because they are:
“Overly broad, extensive and inherently vague, [and] have far reaching implications for freedom of expression in our country because whether or not an individual intends to propagate hate speech or incite hatred against another identifiable group of persons is, in the eyes of [these laws], immaterial.”
The Institute has warned that one of the supposed exemptions granted by the bill, where an expression will not amount to hate speech if it is ” fair and accurate reporting in the public interest”, is suspicious and questionable. Arguing that South Africa’s common law of defamation offers media especially much greater protection in regards to false publications, the institute has voiced its great concern that both the Equality Act and the proposed hate speech legislation seek to undermine this safeguard by requiring media and others to report ‘accurately’ if they are to avoid liability. Such strict requirement, FXI has cautioned, is akin to Zimbabwe’s 2002 draconian Access to Information and Protection of Privacy Act, which prohibited media from publishing falsehoods, and which was declared unconstitutional by Zimbabwe’s Supreme Court in 2003.
FXI has therefore recommended that the Department of Justice take the following into account:
* In the recent past, we have seen a tendency by certain tribunals to interpret the hate speech clause far too broadly, which has invariably led to a violation of the right to freedom of expression for individuals and organisations. This should be borne in mind in the drafting of any anti-hate speech legislation;
* We still do not have an authoritative interpretation of the hate speech provision in the Constitution from South Africa’s courts of law, and any rush to criminalise hate speech using the framework of existing subsidiary laws and tribunal-based decisions runs the risk of undermining freedom of expression even further. This will unduly expose individuals and organisations to criminal prosecution, rendering them at risk of fines and jail terms;
* There are serious problems of definition of terms and concepts inherent in the discussion document, which call for deeper discussions and engagement by wider sections of South African society, including NGOs, the labour movement, social movements, the religious sector and the media, among others;
* There has been little publicity of the proposed legislation and many organisations and individuals who would wish to make submissions remain completely unaware of the existence of the discussion document. A further period of at least two months should be allowed for input; and finally,
* The department should host a series of public workshops on the hate speech bill in all nine provinces, so that there can be a proper and thorough discussion of the proposed law and its implications on the right to freedom of expression in South Africa.
