CFE is concerned at the move to criminalise hate speech in the draft Prevention of Hate Crimes and Hate Speech Bill, currently before Parliament.

CFE abhors hate speech. It is a scourge that hurts individuals and our society and must be prevented as best we can. But CFE does not believe that criminalising it is either effective or desirable, and believes there are enough measures in existing common law to deal with the problem (such as crimen injuria and assault, which have been effectively used in our courts against hate speakers already).

The Bill proposes more severe punishment for crimes motivated by hate, and CFE supports this. But CFE argues that it is not desirable to threaten prison for hate speech on top of this. International experience has shown that hate speech trials and imprisonment do not stop the scourge, but often creates martyrs and makes them famous among racist extremists. In our own South African experience, we have seen that driving speech underground (as the apartheid regime did) often attracts greater interst and gives it more value to those who would propagate it.

CFE would like to see this section removed from the Bill. Alternatively, CFE argues that the Bill should threaten prison only for the most extreme examples of hate speech that threaten violence and imminent harm. This would be more in line with international practice in open democracies and with our constitution’s commitment to free expression.

Please read our full submission here and an executive summary below.

Submission on the Prevention and Combatting of Hate Crimes and Hate Speech Bill

From the Campaign for Free Expression (CFE)

• CFE is a registered Public Benefit Organisation, a non-profit body dedicated to defending and expanding the right to free expression for all in Southern Africa. It is independent and firmly non-partisan.
• CFE abhors hate speech and discrimination based on immutable characteristics such as race, gender, religion, culture, sexual orientation, and so forth.
• But, in our view, the answer to the societal scourge that is hate speech is not to criminalise such speech. The apartheid regime was infamous for criminalising speech that it regarded as threatening. The laws had the opposite effect to what they intended. The publications of the banned liberation movements became a prized commodity. Many South Africans risked jail sentences to read them. CFE fears that the democratic government is making the same mistake.
• Criminalising hate speech will impinge on the freedom of expression, which is the lifeblood of our democracy, without effectively curbing it.
• There are less restrictive means of effectively dealing with hate speech that already exist in our law. These include civil hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”) as well as the criminal offences of, at least, incitement, crimen injuria, and assault. Clause 3 of the Bill, which we support, stregthens these measures by making them more serious offences if driven by hate. CFE contends that clause 4 should be deleted in its entirety.
• If it not deleted, it is our view that criminal sanction should only target the most extreme expressions of hate speech, namely those the Constitution does not protect, as set out in section 16(2) of the Constitution.
• There are other key flaws in the Bill that render it unconstitutional:
• The criminal prohibitions target such a wide spectrum of speech that they would not be justifiable in terms of section 36 of the Constitution.
• The Bill imposes liability without the accused having a guilty mind.
• The prosecutorial discretion in the Bill does not cure the constitutional defects.
• The offence of distribution of hate speech is so broad that it will catch even those who distribute it to expose the culprit.
• The exception for “the publication of any information, commentary, advertisement or notice” (4(2)(c)) is impermisssibly vague and unhelpful.
• CFE submits that the government should never again resort to the heavy hand of criminal law to limit free speech. Hate speech is to be deplored and the aims of the Bill are laudable. In particular, we support clause 3 of the Bill. But CFE submits that clause 4 should be excised from the Bill.
• CFE respectively requests the opportunity to make an oral presentation on this matter.

October 1, 2021

Submitted by:            Prof Anton Harber

Executive Director

Campaign for Free Expression NPC