PEN SA attends public dialogue on the Hate Speech Bill
10 Apr 2019
PEN SA recently attended a panel discussion on the Prevention and Combatting of Hate Crimes and Hate Speech Bill, which was co-hosted by the UCT Student Representative Council (SRC) and the South African Liaison Office (SALO) and featured as the keynote speaker the Deputy Minister of Justice and Constitutional Development, Hon. John Jeffery.
Key issues addressed by main speakers:
- The Bill’s progression occurs in an environment of increased hate-motivated tensions and incidents across the globe. SALO contextually located the Bill in an era of Donald Trump leadership, Alt-Right Populism, and closer to home the Adam Catzavelos case study.
- Speakers noted that in South Africa access to justice remains a key challenge. A notable concern thus remains ensuring, inter alia, extensive and fair access both to the legislative and judicial processes relating to the Hate Crimes and Hate Speech. Students for Law and Social Justice (SLSJ) expressed reservations about the ability of the Hate Crimes and Hate Speech Bill to effectively address the needs of the poorest and most disenfranchised citizens.
- An additional concern related to the Bill’s ability to meet the needs of the local context, given the Roman-Dutch and English Common Law foundations of South African law. Does the Bill’s omission of indigenous legal frameworks undermine its legitimacy – a question at the heart of the decolonisation movement.
- Minister Jeffery acknowledged criticisms of the Bill, including it’s failure to incorporate indigenous legal approaches and concerns regarding practically operationalizing the criminalization of hate speech. However, he affirmed that the Constitution takes precedence over all other legal frameworks.
- Hon Jeffery reiterated the Bill’s unique approach in criminalizing hate speech thereby making it a crime as opposed to a civil remedy. The bill is the first to certify that certain acts, such as use of the ‘k-word’, are instances of hate speech outright.
- He also emphasised that the Hate Crimes and Hate Speech Bill extends the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) in making provision for contemporary problems such as the use of social media to disseminate hate speech.
Key Issues Raised by Audience Members:
- The Bill avoids addressing sociological problems. The overarching concern was that a bill designed to address sociological problems (one characterisation of the problem) avoids acknowledging these problems. There is no definition of racism nor provision of legal solutions to disparate access to judicial process due to economic limitations. The question of “can black people be racist?” remains unaddressed.
- Is the Bill too restrictive? Concerns were raised about restrictions on religious speech – for instance any preaching against homosexuality – which might be considered hate speech if it occurs in the public domain.
- The Bill might be too broad. It is possible that the distribution of a video with the intent to shame that person for hate speech–sharing the Catzavelos video, for instance–would constitute an act of hate speech?
The question of challenges in implementing the Bill, particularly in the light of its vague wording and the attendance sociological problems, were the key concerns raised by audience members.
PEN SA will continue to follow the developments of the Bill, paying close attention to the critiques raised above.