It is telling, albeit bizarre, that the proposed legislation against “hate speech” originates from within the administration of a president whose favourite ditty is a liberation era war song with the refrain “bring me my machine gun”.
And that the legislation is supported by an African National Congress that previously argued passionately that to chant “kill the Boer, kill the farmer” is not only a lyrical vignette from our South African history but that it is deserving of protection in perpetuity.
As a journalist, on this I find myself in rare agreement with these earlier iterations of President Jacob Zuma and the ANC. Such songs are relics of our past and while a white Afrikaner farmer will undoubtedly find them offensive and even threatening, there is not a shred of evidence that their public performance has ever incited actual violence.
We live in a rough neighbourhood and have a troubled history. Whitewashing the unpalatable past might disguise it, but does not make it go away.
While it is undoubtedly insensitive and socially polarising to harp upon our bloody history, it should not be considered hate speech unless it is used to mobilise one group to act violently against another. Robust or even crude language, satire, mockery and the right to offend are all important aspects of democracy.
Indeed, they are sometimes the only tools that marginalised groups have to strike back at the powerful. To want to forbid their use on the vague justification that they may incite “hate” will smother the free speech that lubricates a free society.
Which is why the draft Prevention and Combating of Hate Crimes and Hate Speech Bill that has just been gazetted is problematic. It is, to start with, unnecessary.
There is already an array of long established criminal laws that can be used to deal with a demonstrable incitement to harm. There is also civil legislation that offers redress against defamatory slurs.
Also, there has been in operation in South Africa for the past 16 years the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). It prohibits unfair discrimination, hate speech and/or harassment on the grounds of “race, gender, sex, pregnancy, family responsibility or status, marital status, ethnic or social origin, HIV/AIDS status, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”.
In terms of that Act, hate speech is defined as words that “must be reasonably construed to demonstrate a clear intention to be hurtful, harmful or to incite harm and to promote or propagate hatred”. Alleged offenders are tried in the Equality Courts and there is a considerable range of sanctions that can be applied, including corrective community service and fines.
Under this legislation, notorious white racist Penny Sparrow, who called black New Year’s Day revellers “monkeys”, was slapped with an eye-watering R150,000 fine. On the other hand, Julius Malema, now leader of the Economic Freedom Fighters but then leader of the ANC’s Youth League, was slapped merely on the wrist and had to pay part of the court costs, after being found guilty of repeated performances — along with enthusiastic shooting gestures — of the “kill the Boer, kill the farmer” song.
At the time, the ANC said that it was “appalled” by the judgment. “The ruling flies against the need to accept our past and to preserve our heritage as an organisation and as a people,” said spokesman Jackson Mthembu. “The ANC will explore every possibility to defend our history, our heritage and our traditions.”
As is apparent from the cases involving Sparrow and Malema — and the differing responses of our government to them — what is “hateful” is more of a political construct, subject to the vagaries of social fashion and political correctness, than it is a legal one. Yet this new Bill goes further than PEPUDA, in that it criminalises hate speech.
That is a dangerous change, in that it moves away from PEPUDA’s approach of corrective justice, to one of retributory justice. Chillingly, the Bill, if passed, opens the door to ambitious prosecutors who are close to the government of the day targeting those who are out of political favour with criminal sanctions for nebulous thought crimes.
The new Bill’s definition of what is a hate crime is ludicrously wide. Any act of advocating hatred and “contempt or ridicule” of anybody or any group, will be a crime. So a nasty tweet, a stupid Facebook comment, or a barbed newspaper cartoon, will conceivably bring down on its perpetrator the full weight of the criminal law.
The only cheering aspect to this Orwellian piece of legislative stupidity is that if it is passed by Parliament, it will be challenged in the Constitutional Court and almost certainly will be found to conflict with the Bill of Rights. So let's not waste time, dump it now.
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