New Hate Speech Bill turns petty insults into a crime with 3 years in jail
31 January 2017
Saying, “All politicians are thieving liars” or “All lawyers are blood-sucking parasites”, may land you in jail for up to three years if the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill is passed into law. In its current form, the Department of Justice’s (DOJ) ‘Hate Speech Bill’ will have a profound effect on our constitutional democracy, violates the principle of double jeopardy, introduces 17 grounds for offence – 13 more than the current four of race, ethnicity, religion and gender - and makes normal insult and ridicule into a crime. If enacted, South Africa will become one of the few countries in the world where freedom of expression is regulated to this draconian extent especially as, contrary to international practice, the Bill provides for no exemptions or defences.
Hate speech is speech which is likely to lead to violence or which causes the aggrieved party intense psychological or emotional harm. However, in a submission to the Department of Justice and Constitutional Development ahead of the 31 January deadline, the Free Market Foundation (FMF) argues that the Bill is far too wide, that much of the content is unconstitutional and, inevitably, will lead to successful constitutional challenge. Although, the proposed Hate Speech Bill regulates hate crimes as well as hate speech, the FMF submission is mostly concerned with the regulation of hate speech.
The FMF highlights four critical areas which it recommends should be scrapped or amended, points out that existing legislation does the same job, and that new legislation is not required or desired. The Bill will allow up to a three year prison sentence and 10 years for a second offence for petty disputes and minor insults.
The Equality Act prohibits hate speech, and the Films and Publications Act empowers the Films and Publications Board to refuse classification to publications which contain hate speech. The doctrine of crimen injuria has been used to prosecute cases of hate speech, most notably the recent case of Penny Sparrow, and is superior to the proposed Bill because, unlike the Bill, it requires someone’s dignity to have been violated - and - that the reasonable person, in the same circumstances, would also have felt degraded. Under the new Bill, petty disputes and jokes may lead to a prison sentence.