Written by: FOR SA
Article source: Supplied

The President’s signature on the Combatting and Prevention of Hate Crimes and Hate Speech Act is a dark day for democracy and for religious freedom in particular. Far from protecting and promoting a more free and participative society, this law cuts deeply into the constitutional cornerstone of the right of freedom of expression.

“It is bizarre that it will be easier to be prosecuted and jailed for the new crime of hate speech than to be sued successfully and made to give an apology or pay a fine under the Equality Act.” says Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA).

The Constitution and the Constitutional Court are clear that hate speech must be narrowly defined, but this law opens the door to frivolous and vexatious criminal prosecution.

The definition of “hate speech” is concerningly vague and ambiguous, even subjective.

“The central element of the crime now punishable by up to five years in prison – namely “hate” – is not defined in this law”, says Swain. “How will you even know if you are committing a crime?”

It will be possible to be arrested and prosecuted for any “hateful” expression that may cause someone “substantial emotional harm” if they belong to one of the eighteen protected groups.  “Emotional harm” is very subjective. “Hate speech” can simply be interpreted as “speech that I hate”. It will be up to the courts to decide whether this so-called harm was experienced.  It opens the criminal justice process to a lottery, where a conviction or an acquittal may depend heavily on the views and perspectives of an individual judge, rather than the law being applied equally and fairly to all.

“This law was touted to punish racist expressions, but South Africa already has the common law crime of crimen injuria,” says Swain. “This was used effectively to sanction racist speech, as the recent cases of Penny Sparrow and Vicky Momberg made clear.”

Over 200,000 written submissions were made during three public participation processes. These primarily expressed concerns about the impact of this law on bona fide religious expression and the overbroad and vague definitions.

“It is evident that the government has not engaged in any meaningful way with the concerns of the public,” says Swain. “The so-called religious exclusion clause still offers little or no protection.”

Globally, there is growing hostility to traditional, faith-based views on sex, gender and sexual expression. People have even been prosecuted for quoting Bible scriptures. This law may well be weaponised against those who hold and express these views.

FOR SA and many other civil rights organisations made submissions to draw the Government’s attention to their international treaty obligations, which give very narrow parameters to legislation which criminalises hate speech. These were all disregarded.

“We continue to hold the view that this law is unconstitutional and that the views overwhelmingly expressed during the public participation process were not properly considered”, says Swain.  “We will now consider taking appropriate legal action to challenge the validity of this law.”

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Date published: 16/05/2024
Feature image: Image for illustrative purposes only. Artwork adapted from ww.freepik.com

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