by Rex van Schalkwyk
The Prevention and Combating of Hate Crimes and Hat Speech Bill (“Hate Speech Bill”) proposes criminalising everything from actual hate speech, to harmless insults or comedic expression. The rule of law is a constitutional principle in South Africa, found in section 1(c) of the Constitution, and is violated at various points in the Bill. If charged with hate speech, you can also be charged with a hate crime, which violates the rule against double jeopardy. The language of the Bill is confusing and violates the rule of law because the provisions are not clear or easily understandable. The Bill introduces uncertainty – it will often depend entirely on the emotions or feelings of the aggrieved party whether or not there will be a prosecution. The government says the Bill is intended to fight racist hate speech, but race is only a small part of it. The Constitution protects race, ethnicity, gender, and religion from the advocacy of hatred with the intention to cause harm. The Hate Speech Bill goes further providing that you may not ‘insult’ someone with the intention to bring them into ‘contempt’ or ‘ridicule’ them, based on 17 protected characteristics The Bill could be used for political persecution, especially if it criminalises “insulting” someone with the intention to bring them into “contempt”, based on their belief (which would include political beliefs) or their occupation (which would include politicians and civil servants). The Bill has the effect of making a substantial portion of ordinary human expression punishable by up to three years in prison.
No other country in the world with a justiciable constitution based on human dignity and freedom goes to this length in its regulation of speech.
Rex van Schalkwyk is a former judge of the Supreme Court of South Africa and is the chairman of the FMF’s Rule of Law Board of Advisers. He is the author of three books and numerous published articles.