When criminalising speech, we need to toe the constitutional line

Read More

The Hate Speech Bill is a return to the apartheid-era criminalisation of speech. The bill controversy concerns not only its criminalisation of speech but the wide scope of its hate speech prohibition.

South Africa is a signatory to several international treaties that obligate it to prohibit and address hate speech. But the United Nations Rabat Plan of Action cautions that speech should be criminalised only as a measure of last resort.

Criminal sanctions that include imprisonment are not strictly necessary, when civil sanctions such as fines and apologies would suffice. The existing Equality Act already provides an avenue for civil sanctions.

Genuine hate speech is not constitutionally protected speech, and rightly so. The Constitution defines hate speech as “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”. But the Hate Speech Bill reaches beyond this ambit.

Its proposed criminal hate speech offence encompasses expression that (1) is harmful or incites harm and (2) promotes or propagates hatred against (3) a group of people specifically listed in the bill. The bill further proposes a term of imprisonment for up to eight years for anyone found guilty of hate speech.

When criminalising hate speech, it is best to hue as close to the Constitution as possible. Doing otherwise risks eroding freedom of expression, a fundamental right that lies at the heart of democratic societies. 

It is only rational to set a higher bar for criminal hate speech compared to civil hate speech. It is concerning that the bill’s definition of harm is very wide (and includes subjective and ambiguous concepts), that hatred is not defined, and many more groups are listed than in the relevant section of the Constitution.

In this sense, the Equality Act is not a good reference point. Its definition of hate speech is wider than the Constitutions, so it sets a low bar for hate speech. But it also only imposes fines and apologies on persons found guilty of hate speech, and not imprisonment. 

Within reason, a wider definition for civil hate speech is constitutionally acceptable, while for criminal hate speech, is not. Furthermore, the limitations clause in our Constitution requires that less restrictive means be taken before limiting a right.   

These concerns are only compounded by the lack of consistency in the way civil hate speech cases are being decided. At least the Equality Act is not sending anyone to prison. The Hate Speech Bill will.

It is only fair that the public knows what the criminal law requires to avoid committing offences. When looking at even a small selection of hate speech cases, it is difficult to know in advance how courts (and institutions such as the South African Human Rights Commission) will view a particular case. This is very concerning if an eight-year maximum sentence of imprisonment is on the table.

For example, Kenny Kunene called Julius Malema a cockroach and was found guilty of hate speech. University of South Africa lecturer Benny Morota referred to white South Africans as cockroaches and was not found liable. The human rights commission also concluded that Julius Malema’s assertion: “We are not calling for the slaughter of white people, at least for now …”, was not hate speech. This is perhaps not surprising, because one of its commissioners has admitted that, because of historical context, the commission is “purposefully lenient to black offenders in racial incidents”.

In contrast, the constitutional court ruled that Bongani Masuku’s statement, which included that “every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine” and that these “Zionists” must be targeted, exposed and subjected to perpetual suffering until they withdraw from Palestine, is hate speech against Jews.

More contrasts: the gratuitous display of the old South African flag is hate speech, while calling for the killing of white women and children is not. The Equality Court ruled in 2011 that the song Kill the Boer is hate speech, but ruled in 2022 that it is not.

It is not obvious, in fact it is quite confusing to know in advance whether what you say, or display, will be considered hate speech. And more specifically, whether you will be risking up to eight years imprisonment.

Is it fair to wonder whether the courts and the human rights commission are picking sides depending on who the offenders and victims are? That would mean that hate speech cases basically turn on individual subjective value judgments and not the objective consideration of the law and facts.

The Constitution is clear that all are equal before the law, but when it comes to the application of hate speech laws, are some now more equal than others?

Mark Oppenheimer is an advocate and member of the Johannesburg Bar.  He has appeared in the supreme court of appeal and the constitutional court in a series of cases that seek to determine the boundary between freedom of expression and genuine hate speech.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.