By Anton Harber

Criticism of government sometimes takes on a racial tone, whether intended or not. Certainly, the ANC has often felt that some of its critics are motivated by racism of the “What do you expect from them?” kind. And many ANC leaders have also believed that elements of the media are more critical of them than they were of the white apartheid government.

Will the new Prevention and Combating of Hate Crimes and Hate Speech Bill allow government to lash out at such critics? Will it help prevent racism? Will it have a chilling effect on criticism and news reporting on controversial topics? Our current government has been tolerant of its critics, even the most vociferous, but will it remain so when it is in danger of losing power? Or will the next government be more eager to go after its critics? These are some of the questions at the heart of the Bill currently before Parliament.

The draft law has been passed by the National Assembly and is now before the Council of Provinces, which has called for comment on it. The Bill is considerably improved from the first draft that was tabled five years ago. That one was a shockingly badly drafted law that defined hate speech so loosely that it would have quickly killed off a whole range of critical speech. Fortunately, lobbying from a wide range of civil society has paid off, parliament has heard the problems, and this draft is improved – though it still raises important issues.

The Bill has two parts, one dealing with hate crimes, the other with hate speech. The first section prescribes longer jail sentences for any crime that is shown to be motivated by hate against specified, vulnerable groups. There are few objections to this.

The second part of the Bill criminalises hate speech and threatens a jail sentence for up to eight years for it. The mystery is why this part is needed at all, as the state has plenty of laws to use against the perpetrators of hate speech. The Equality Act dealt with it and opted for civil remedies – like fines and forced apologies – rather than prison. Other laws – such as crimen injuria, assault and incitement – have been used to send serious hate speech perpetrators – like Vicki Momberg – to prison.

Why is parliament prioritizing another hate speech bill at this time when we have adequate law to deal with it and there are so many other pressing issues to deal with? This is, they tell us, to bring our hate speech law into line with international practice.

But the law does not do this. International best practice is clear: the UN’s Rabat Plan of Action recommends that “criminal sanctions should be seen as last resort measures in strictly justifiable situations. Civil sanctions and remedies should also be considered …”

This caution is intended to minimise the impact on free speech and prevent the threat of prison having a chilling effect on criticism of authorities. This Bill threatens long prison sentences for any hate speech, quite out of line with those international guidelines.

There are questions to ask about whether prison is the most effective way to deal with this problem. We know that when the apartheid government jailed people for having ANC propaganda, it only increased interest in the material. It drove it underground and made it harder to find. Many went in search of the forbidden, eager to know what was so menacing. In a similar way, purveyors of hate who are sent to prison are sometimes turned into martyrs and use it to promote white supremacy and other dangerous ideologies.

When hate speech is clear and obvious, then our courts have been able to deal with it with the laws we already have. The difficulties come when it is borderline and one has to decide what is legitimate opinion and criticism – even when it is shocking, disturbing or offensive – and what crosses the line into hate speech.

When Julius Malema sang “Kill the Boer”, it wasn’t hate speech. When Kenny Kunene called Malema a “cockroach”, it was hate speech. When an anti-government protestor waved an old South African flag, it was hate speech. The courts are trying to define where the line lies between acceptable speech, even when it is offensive, and speech that threatens serious harm to groups who are targeted because of some immutable characteristic, like race or gender. It can be complex, as they have to take into account each context.

We all want to stop hate speech, but we have to be concerned if the law will allow the authorities to lash out at artists, cartoonists, protestors or critics who tackle issues like race and gender. We don’t want to inhibit free debate and discussion, even when it is tough and unpleasant. But we do want to stop dangerous purveyors of hate and division.

The country’s most famous cartoonist, Zapiro, has faced accusations that some of his tough drawings cross the line. Artist Brett Murray’s The Spear painting caused an uproar because of its depiction of President Jacob Zuma’s penis. Should such work be stopped? Will just the threat of prison have a chilling effect on critical work? Will galleries or newspaper hold back on such work for fear of being turned into criminals?

With such uncertainty on where the line lies between what is merely offensive and what is hate speech, there is a real possibility that the threat of being charged and facing jail will have a chilling effect on journalists, artists, activists and others who criticize authority or deal with hate speech.

Fortunately, one of the strengths of the Bill is that it has an exemption for artists, journalists, scientists and religious leaders. Bone fide journalists, for example, are exempt as long as they don’t promote hate speech. In other words, they can report incidents of hate speech as long as they do it in a way that does not exacerbate it or the harm it causes. This appears to be in line with the Press Code, which forbids a journalist from propagating hate, though encourages them to report on it.

But the law has no specific exemption for satire and parody – and this is essential. Our target must be the spreaders of real and dangerous hate, not the creative sector.

There is also the danger of definition creep, as successive legislation and judgement seems to extend the range of what is described as hate speech. Each extension may be justified, particularly given the growing problem with hate speech aimed at groups defined by factors such as gender identity, albinism or refugee status. But the danger is that we push gradually into more areas of free speech and extend the chilling effect.

The Constitution protected groups who were targeted on the basis of race, gender, ethnicity or religion. This Bill goes further, adding albinism, ethnic or social origin, HIV status, nationality, migrant or refugee status or asylum seekers, skin colour, gender orientation, identity or expression or sex characteristics,

This Bill extends the notion of harm from the physical to include psychological, economic, emotional and social “detriment”. If we are not careful, we will let hate speech move further and further into controversial speech, and undermine our freedom to speak out.

Our top courts generally protect us now. But when our politics becomes more contested and uncertain, and we face the possibility of a less tolerant state, can these ever-expanding laws be turned against us?

Since we already have sufficient laws to deal with hate speech, let’s drop the part of this Bill that extends that. Let’s stay in line with international best practice.

*Harber is executive director of the Campaign for Free Expression and Caxton Professor of Journalism.