Written by: Daniela Ellerbeck, FOR SA Legal Advisor
Article source: JOY! Magazine
Our right to religious freedom (section 15 of the Constitution) is one of the most important human rights we enjoy in South Africa – it is the freedom to choose what we believe, the freedom to share our beliefs openly with others, and the freedom to publicly manifest our religious beliefs by means of worship and practice. Our right to freedom of expression (section 16 of the Constitution) is closely related because it protects our ability to publicly share our faith and it specifically protects our freedom to impart information or ideas.
Freedom of expression
It is self-evident that we would not have much freedom of religion if we were not free to tell other people about our faith. The Constitutional Court has said that these rights are all part of a “web of mutually supporting rights”. They are, therefore, intertwined – so when one is threatened, the other is threatened as well.
A threat to religious freedom
One of the most concerning threats to freedom of expression is the Prevention and Combating of Hate Crimes and Hate Speech Bill, which criminalises hate speech. Known as the “Hate Speech Bill”, this proposed law is currently being considered by Parliament. It was opened for public comment last year and over 103,000 submissions were made to object to its provisions. Should this law be passed in its current form, you could face an unspecified fine and/or three-year jail sentence for a first offence, increased to five years’ imprisonment for a subsequent offence. Even sharing someone else’s comments on Facebook, if they amount to the Bill’s definition of “hate speech”, will be an offence.
Easy to be found guilty
Equally problematic is that it will be easier to be found guilty of the crime of hate speech under the Bill, and sent to jail, than to be ordered to apologise under the Equality Act. This is because the Bill’s definitions of “hate speech”, “harm”, and “victim” are wider that those in the Equality Act. The Bill’s protection from prosecution for religious speech is also inadequate. Although an exemption clause for bona fide religious speech is now included, it needs to be significantly strengthened to actually properly protect religious expression.
The way forward
The Bill clearly demonstrates the importance of public participation in the law-making process to ensure that our freedom to live out our faith and to tell others about it, remains protected. FOR SA continues to actively engage Parliament and will alert the public about any developments.
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Date published: 03/01/2023
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