The devil is in the detail of the Hate Bill

John Kane-Berman says legislation smuggles in a curtailment of free speech, behind promise to clampdown on 'racism'

 , but also in the design

Julius Malema's recent incendiary utterances against whites should earn him a stiff penalty under the Riotous Assemblies Act of 1956. They would certainly earn him a stiff penalty under the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill if it becomes law. The deadline for submissions is 1st December.

Not only do Mr Malema's remarks reek of racial hostility, they also incite his followers to commit the offence of trespass by occupying land. Although he says occupation should be peaceful, this would not make it legal or guarantee that it will not lead to violence.  

There has been little public objection to the Hate Bill. Many may welcome it on the grounds that it outlaws racist remarks. But the bill goes further. The Constitution's protections of free speech do not cover advocacy of hatred based on four specified grounds, which are race, ethnicity, gender, and religion. The bill, however, seeks to prohibit "hate crimes" and "hate speech" motivated by any one of 13 additional characteristics, bringing the total to 17.  

The definition of "hate speech" goes so far beyond what most people would regard as "hate speech" that it recalls the definition of "terrorist activities" in the Terrorism Act of 1967. That act defined those activities so widely that they included "embarrassing the administration of the affairs of the state", causing "substantial financial loss to the state", and "obstructing the free movement of traffic".

The stratagem of the bill is the same as the one used for the Terrorism Act. Enlist support for combating "terrorism" or "hate speech", and then smuggle in a whole lot of other things you want to prohibit as well.       

The hate bill thus defines "hate speech" to include "any communication whatsoever" that is "insulting" to any person or group of persons and which "demonstrates a clear intention" to bring them into "contempt or ridicule" based on any one of the 17 listed grounds. These include "belief" and "occupation or trade". "Communication" includes everything from a "gesture" to visual, oral, written, and electronic communications.

The bill does not define "insult", but Chambers and the Concise Oxford Dictionary between them define it to include offending a person's "modesty or self-respect". To "bring into contempt" is to "make despised". To "ridicule" someone is to make fun of them, laugh at them, mock them, deride them, or expose them to merriment.  

This goes beyond "hate speech". Some of those objecting to the bill point out that its prohibition of ridiculing people on the grounds of occupation might make it an offence to repeat the joke that an actuary is an accountant without personality.

More seriously, however, it would put at risk much recent newspaper and website comment which has ridiculed people whose occupation is that of politician, parliamentarian, public prosecutor, or cabinet minister. Since ridicule is one of its characteristics, satire also runs the risk of being prohibited. Penalties for a first offence include three years in prison.

Had such legislation existed under the previous government, it would have put Pieter-Dirk Uys out of business, because his stock-in-trade was to poke fun at cabinet ministers and National Party politicians.

The bill may be struck down as unconstitutional on the grounds that its proposed limits on freedom of expression go too far. But its wide scope should be recognised for what it is: a sign that the Department of Justice and Constitutional Development, its sponsor, has little respect for the rights and freedoms upon which the post-apartheid South Africa is supposedly built.

Economic rights and freedoms have been steadily whittled down in recent years by interventionist legislation. The bill attempts to extend the assault into the political terrain. Since free speech is a critical component of democracy, the bill is also an attack on democratic rights. It warrants more public opposition than it has so far attracted.            

* John Kane-Berman is a policy fellow at the Institute of Race Relations (IRR), a think-tank promoting political and economic freedom.