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On 31 January 2017 the first opportunity for public comment on the Prevention and Combating of Hate Crimes and Hate Speech Bill finally came to an end.

People who are convicted of breaking the hate speech law – if the bill is passed – would be fined or serve a jail term of up to three years for a first conviction, and up to ten years for a second conviction.

South Africa is a racially-diverse country and racial issues are some of the problems the country still faces, despite recent significant improvements. The Hate Speech Bill is a direct infringement on the freedom of expression of South Africans. The bill, when passed into law, could be used by the government to criminalize criticisms against it.

The document defines hate speech as “an intentional communication (including speech) that advocates hatred or is threatening, abusive or insulting towards any other person or group of persons; and demonstrates a clear intention to incite others to harm or stir up violence against, or bring into contempt or ridicule, any person or group of persons defined by 17 different characteristics, ranging from race and gender to social origin, trade and occupation.”

This broad definition of hate speech could empower government officials to punish people who express opinions that are critical of its actions or those divergent from its political position.

The threshold to succeed in such a conviction is simply for the expression to “bring into contempt or ridicule any person.” This could lead to a jail term. These may also include journalists and press organizations or any person that publishes an article or creation that the government finds insulting.

If the Constitution already makes provisions for the limitations of the freedom of expression, why fix what is not broken? Section 16 the Constitution outlines that the freedom of expression includes:

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

It then clarifies that the protection of expression does not extend to:

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

In addition to the Constitution, provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) also caters for hate speech. Section 10 of the Act, titled ‘the Prohibition of Hate Speech’, reads, “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm [and/or] promote or propagate hatred.”

The new bill indicates the government’s attempt to stifle South Africans’ freedom of speech. This is not far fetched, as the South African government continues to fail to salvage the country’s economic woes and rising unemployment.

Creating more regulations to defeat hate speech will not solve hate problems. Government must look for better ways to harmonize the South African multiracial community. Parliament should, instead, work to implement already-existing law to tackle hate speech in the country.

Author: Olumayowa Okediran is the African Programs Director of Students For Liberty.

  • Tim Bester

    It is time we decriminalised race (BEE laws, in effect, do this) and de-racialized crime (crime is crime).

  • Jean du Toit

    When the hate speech laws come into effect, it would be most prudent for every white person in South Africa to limit their interaction with black people to a minimum, and only where absolutely necessary. This law will only be applied in one direction, and I foresee it being used liberally to punish the “evil white bustads”.