Parliament moved one step closer to the criminalisation of hate speech yesterday when the department of justice and constitutional development introduced the Prevention and Combating of Hate Crimes and Hate Speech Bill.
Department officials gave members of the National Assembly an overview of the Bill, outlining various clauses which will in essence make it a criminal offence to make racist remarks and the criminal sanctions which would apply in case of transgressions.
According to the department, the aim of the Bill is to “give effect to the Republic’s obligations in terms of the constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance”.
They hope to achieve this by providing a legislative framework for the classification of hate speech as an offence and for the prosecution of offenders.
If passed, the Bill would also provide channels for the reporting, implementation and administration of the Act and, hopefully, prevent the commission of hate crimes and hate speech.
The Bill has become more topical in recent months with the spate of racially motivated outbursts on social media and in public, most notably, that of convicted racist Vicki Momberg.
Momberg was sentenced to an effective two years in prison after a video of her rant, in which she called a Johannesburg Metro police officer the k-word 48 times, went viral on social media.
Momberg was convicted on a charge of crimen injuria in the absence of specific legislation to deal with racism, with magistrate Pravina Raghoonandan emphasising the need for mutual respect and tolerance among races.
“Some may think the sentence is harsh, but it must send out a clear message for people who use the k-word,” she said during sentencing.
The Bill has critics, with many saying it is an attempt to criminalise free speech.
However, attorney Richard Chemaly, from Chemaly Incorporated Attorneys, said the Bill was simply an attempt to “smooth out the jagged edges” of existing legislation.
He said the constitution already outlawed hate speech.
“South African free speech has never been American free speech. Our speech has always been far more limited than our TVs would have us believe. We were never allowed to incite violence and the only change is now we’re also not allowed to incite hate,” he said.
He also allayed fears that, if passed, the Act would lead to large-scale prosecution of people falsely accused of racism and hate speech.
“In terms of prosecution on false accusations, it will be difficult since the Bill requires proving ‘prejudice or intolerance towards the victim’ based on particular status, i.e. I hate you because you speak Xhosa. Proving I hate you won’t be a problem, but proving the reason will.”
One element of the Bill that was radically different from past legislation, he said, was the notion of victim impact statements, which would be made compulsory when arguing for sentencing. These would not affect whether a person was convicted on the charges, but if found guilty, would determine the punishment.
“The Bill doesn’t compel anybody to stop saying hateful things,” said Chemaly. “If you want to hate somebody, the Bill requires you to hate them for who they are as an individual and not because they belong to a particular group.”
The Bill defines a hate crime as: An offence in which a person is motivated by that person’s prejudice or intolerance, because of one or more of the following characteristics:
- Ethnic or social origin;
- Gender or gender identity;
- HIV status;
- Nationality, migrant or refugee status;
- Occupation or trade;
- Political affiliation or conviction;
- Sex, which includes intersex; or sexual orientation.
- Any person who intentionally publishes, propagates or advocates anything that could reasonably be construed to demonstrate a clear intention to incite harm or promote hatred based on the above-mentioned characteristics, would be considered to be guilty of hate speech.