Hate Speech Bill: Experts cite unconstitutional consequences

Last year Cabinet invited public comment on the draft Prevention and Combating of Hate Crimes and Hate Speech Bill.

The Bill aims to give effect to country's obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance.

Hate Crimes Working Group chairperson, Sanja Bornman, says the provision around hate speech has dominated the public debate at the expense of the hate crime provision.

Bornman says Section 4 of the Bill outlining the offence of hate speech is very broad.

She highlights that the language used is wide and many speech acts that should not be criminalised might look illegal.

See Section 4 summary below quoted by Bornaman;

"Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that advocates hatred, is threatening, abusive or insulting, and which demonstrates a clear intention, cite others to harm, up violence against, or bring into contempt or ridicule, any person or group of persons."

Freedom of Religion South Africa executive director, Michael Swain, says there is a need for adjustments in the Bill.

The hate speech is so broad that it could potentially be used for an application that was not originally intended.

Michael Swain, Freedom of Religion South Africa executive director

The big danger is, in a democracy as soon as you define hate speech broadly, you inevitably limit freedom of speech and when you do so you start to undermine one of the most fundamental freedom that we enjoy for democracy.

Michael Swain, Freedom of Religion South Africa executive director

Another thing is that you paralyse the situation and you can effectively shut down the debate.

Michael Swain, Freedom of Religion South Africa executive director

The more we limit particularly freedom of speech by labeling it hate speech, the more we undermine our democracy and opportunity to engage in what I believe should be very fruitful conversation.

Michael Swain, Freedom of Religion South Africa executive director

Bornman argues that as things stand in the criminal justice system there is no obligation to investigate the motive on hate crime or the court to take it into account.

She says the section focusing on hate crimes is necessary.

Hate crime is recognised in criminal law. All this law needs to do is now recognise the motive, provide us with a definition what is hate crime.

Sanja Bornman, Hate Crimes Working Group chairperson

Listen to the full interview below for more arguments...

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