The ‘Hate’ Bill – Unnecessary, unconstitutional and likely to be deeply damaging – Biznews, 31 January 2017

By Anthea Jeffery 

The deputy minister of justice and constitutional development, John Jeffery, says the Prevention and Combating of Hate Crimes and Hate Speech Bill of 2016 (the Bill) is urgently required to counter ‘the plethora of racial incidents’ in 2016.

However, a comprehensive survey of public opinion on racial issues (commissioned by the IRR and carried out in September last year) shows that only 3.2% of South Africans – and 2.4% of blacks – identify racism as a serious unresolved problem. If problems of inequality and xenophobia are factored in as well, then 6.4% of all respondents and 5.9% of blacks list racism, in this broader sense, as a serious problem. Far more public concern is evident about joblessness, service delivery failures, corruption, poor education, and inadequate housing.

Responses to various other questions in the IRR field survey further confirm that race relations in the country are still generally sound. There is thus no looming racial crisis that could justify the Bill.

Moreover, the hate speech provisions in the Bill are wide enough to cover cartoons and other criticisms of the president and his cabinet, which ‘insult’ them and ‘bring them into ridicule’. Penalties for such ‘offences’ will include fines and lengthy jail terms: up to three years on a first conviction, up to ten years on a second.

In addition, journalists and other commentators who electronically distribute such cartoons or critical comments will face precisely the same penalties – even though their intention is to inform the public, not insult the president or his executive.

These provisions are clearly in breach of the guarantee of free expression in Section 16 of the Constitution. This primarily identifies hate speech as that which ‘incites violence’. Also included is speech which ‘advocates hatred’ on the basis of ‘race, ethnicity, gender, or religion’, provided that it also ‘constitutes incitement to cause harm’.

The Bill’s hate speech provisions go far beyond these parameters. Nor can they be justified under Section 36 of the Constitution, which allows guaranteed rights to be limited if various criteria are met. One such criterion is whether ‘less restrictive’ means can be found to fulfil the relevant societal objective. The Bill clearly does not satisfy this test. It could easily be more narrowly written, while South Africa already has a number of laws that can be used to curb hate speech.

As for the hate crime provisions, these are too vaguely phrased to pass constitutional muster. They are also unnecessary. As the deputy minister himself has stressed, the courts already regard a racial motive as an aggravating factor in deciding on sentence for murder and other crimes. Perversely, the Bill may make it harder to sustain this approach.

Under the Bill, racial motivation will be an essential element in all hate crimes. This means the prosecution will have to prove such motive beyond a reasonable doubt before a court can convict. In practice, this will often be difficult to do. By contrast, a racial motive as an aggravating factor relevant to sentence has to be proved only on a balance of probabilities, which is an easier test.

Double standards in enforcement are also likely to apply. In the past year, existing hate speech rules have been strongly enforced against Penny Sparrow, who insultingly equated black beachgoers to monkeys, and also against various whites who used the ‘k’ word against blacks. By contrast, virtually no action has been taken against Velaphi Khumalo and other black South Africans for inciting violence against whites. (Mr Khumalo, for example, called in January 2016 for whites to be ‘hacked and killed like Jews’ and for their children to be ‘used as garden fertiliser’.)

The hate speech provisions will primarily be used against white South Africans, to help focus public attention on white racism and strengthen outrage against it. This will help lend credence to ANC assertions that white racism is the key reason for persistent poverty and inequality, rather than more salient factors such as low growth, bad schooling, and pervasive unemployment. At the same time, calls by black South Africans for whites to be attacked and killed are unlikely to evoke either prosecution or punishment under the Bill. This could add to racial polarisation and raise the risk of racial confrontation.

In addition, much of the racial invective emanating from the ruling party, the Economic Freedom Fighters (EFF), and the amorphous #FeesMustFall movement is rooted in the ideology of the national democratic revolution (NDR), to which the ANC and its communist allies have long been committed.

This racial invective is intended to stigmatise whites, deny their contribution to the development of the country, and make it easier for the government to embark on a major programme of expropriation and nationalisation. Yet this will cripple the economy, rather than provide effective redress for past injustice. The ideologues appear careless of the economic suffering this will cause, for they seem to believe that it is only after the free market economy has been destroyed that a socialist and then communist system will be able to rise, phoenix-like, from the ashes.

The Bill will aid in this destructive process by focusing yet more public attention on the racist utterances or actions of a tiny minority of whites. In doing so, it will help the ideologues to build perceptions that such abhorrent conduct is representative of whites in general.

The Bill is thus likely to be deeply damaging. It is also unconstitutional and unnecessary – and should be withdrawn and replaced by a very different approach.

The best way to reduce racial awareness and racial hostility is for the ANC unambiguously to embrace the Constitution’s founding value of non-racialism. The ruling party should abandon its own racial invective, jettison policies that depend on racial classification and racial preferencing – and start promoting the growth, investment and employment that alone will benefit the truly disadvantaged.

Dr Anthea Jeffery is head of policy research at the Institute for Race Relations. You can follow them @IRR_SouthAfrica. Jeffery is also the author of Race Relations in South Africa, Reasons for Hope 2017, to be published by the IRR in mid-February 2017.

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