The Prevention and Combating of Hate Crimes and Hate Speech Bill, now in its second version, is a far cry away from the dangerous intervention that was the first version of the Bill. It does away with the notion that ordinary “insults” that seek to “ridicule” or bring people into “contempt” could be considered hate speech and thus sanctionable by imprisonment for up to a decade; and it does away with the protected grounds of “belief” and “occupation.” The new Bill is far more faithful to the constitutional definition of hate speech and, as such, no longer poses an existential threat to democracy and freedom in South Africa, as did its predecessor. The Bill, however, retains some marked imperfections.
The FMF, which has been involved in every step of the public participation process since the first version of the Bill was announced, remains concerned about the following three factors:
- The hate speech provisions in the Bill, as in 2016, remain unnecessary, as existing anti-hate speech law and doctrine is sufficient.
- The Bill’s definition of hate speech does not align fully with the constitutional definition of hate speech, which it must; and,
- The Bill’s definition of hate speech is unnecessarily complicated and stated in unashamed legalese, making it difficult for those to who it applies, to understand it.
Ideally, the FMF recommends the Bill be changed to reflect its original roots: an anti-hate crimes bill. In other words, the hate speech provisions throughout the Bill should be removed on the understanding that South Africa’s other anti-hate speech measures have been successful. Introducing new law for its own sake should never be on the parliamentary agenda.
Short of this ideal, however, the FMF recommends that the Bill’s labyrinthian definition of hate speech be replaced with the words used to define hate speech in section 16(2)(c) of the Constitution, so as to bring this aspect of the Bill into full constitutional accordance, and to simplify the language so that ordinary South Africans can understand and adhere to it.
The submission, drafted by Martin van Staden, can be read here.