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It is on this day that the National Council of Provinces will consider the Prevention and Combating of Hate Crimes and Hate Speech Bill during its plenary session. If the bill is passed, it will become law in South Africa, introducing a very broadly defined crime of hate speech that applies to all South African citizens. 

Dr Georgia du Plessis, Legal Officer at ADF International, Brussels, and Research Fellow at the University of the Free State (UFS) and the University of Antwerp, Belgium, points out that, according to the South African government, one of the objectives of the Prevention and Combating of Hate Crimes and Hate Speech Bill is to fulfil South Africa’s responsibilities as outlined in the Constitution and international human rights instruments.

“Here reference is made to the International Convention on the Elimination of All Forms of Racial Discrimination (to which South Africa is a signatory). However, this convention only refers to issues confined to discrimination based on race, colour, national or ethnic origin and not the extensive list of grounds found in Clause 1 of the bill. Furthermore, the international bill of rights (Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights) places no obligation on member states to implement hate speech laws,” she states.

She strongly believes that “the so-called international obligations requiring such overbroad hate speech laws are not specified and an incorrect understanding of the actual obligations placed upon South Africa by these international instruments”. 

Solving inequalities

Given the deep-rooted inequalities in the country, it is easy to conclude that certain forms of speech contribute to maintaining these historical inequalities, making a case for their regulation and prohibition.

Dr Du Plessis, however, is of the opinion that the current inequalities found in South African society are due to a variety of historical and current factors such as corruption, perpetuated historical inequalities, low employment and education rates, etc., that will not be solved or even alleviated by limiting freedom of expression. “Quite the contrary,” she states. 

She believes there are already measures in place to limit speech that threatens to discriminate and violate the rights of others. Here, for instance, she refers to Section 36 of the Constitution and laws such as the Promotion of Equality and Prevention of Unfair Discrimination (Equality) Act 4 of 2000. “Here Section 10 already prohibits ‘hate speech’ even more broadly than the South African Constitution (Section 16),” she says. 

“The Equality Act is already an overly broad restriction of freedom of speech found in the Constitution,” states Dr Du Plessis. 

According to her, freedom of expression was one of the few tools that can and remains to be used by the vulnerable, oppressed, and poor. “There is no evidence that suggests that such ‘hate speech laws’ will protect the most vulnerable in society and reduce racism. Instead, it gives the government a tool to take away hard-won rights and freedoms that can be used against those very same groups in society that need the most protection. Limiting speech will not reduce inequalities and discrimination. On the contrary, it will disempower those who need it the most,” she says. 

The definition

Dr Du Plessis says, “The current Hate Speech Bill contains a circular definition of ‘hate speech’ which boils down to ‘hate speech’ being defined as ‘hate’.” 

“This lack of narrowly defined concepts, which is necessary for legal certainty in criminal law, can easily be used to the ‘advantage of a government’ and enlist the general public as ‘agents of the control process’,” she states. 

Dr Du Plessis uses blasphemy laws in Nigeria as an example – a country where “blasphemy laws are used as an excuse to act in a discriminatory manner and in violence towards others when the person feels that his or her religion or religious figure has been offended. Deborah Emmanuel Yakubu was stoned and burned to death for posting messages on WhatsApp allegedly insulting and blaspheming against the Prophet Muhammad”.

She suggests that although the Hate Speech Bill may seem different – that it will not allow for such instances within the young democracy – the wording of the current version of the bill is open to being interpreted as putting someone in jail for eight years for causing emotional ‘harm’ (whatever that may mean). “This is not very different from how blasphemy laws operate, which is premised on the emotional subjective experience of the person towards whom the speech is made”.

“In essence,” she says, “Clause 4(1) of the bill states that any person who acts in a manner that can be seen as a clear intention to incite harm and propagate hatred is guilty of hate speech.”

As stated by her, ‘hate’ is not defined further, and ‘harm’ is very broadly defined as any ‘substantial emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual or group’. Thus, aspects such as ‘offence’ can easily be included under the definition of ‘harm’, even if international law clearly states that speech causing offence cannot necessarily limit the right to freedom of expression as such.

She also points out that there is no universally accepted definition of ‘hate speech.’ “Speech that is defined by an emotion, such as hate, is conducive to the subjective emotional meaning attached to it by the one who utters such speech and the person against whom it is uttered,” she says.

• Dr Du Plessis lectured public law subjects at the UFS, which included international law, administrative law, statutory interpretation, and human rights law in general. She later received a scholarship to complete her PhD in Law in Belgium on the right to freedom of religion or belief. At KU Leuven in Belgium, she lectured and published on related topics and thereafter started working at ADF International in Brussels. Her work at ADF International involves legal advocacy and research on freedom of religion or belief, freedom of expression, and parental rights – mainly related to the European Union, but also internationally (for example, related matters in South Africa).
  

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