Tag Archive | hate

Hate speech remains in Hate Crimes Bill

Obsession with Facebook slows draft 

….sent to clients 15 Jan…  The highly controversial draft Prevention and Combating of Hate Crimes and Hate Speech Bill has been published by the Department of Justice and Constitutional Development for comment. Submissions are now being considered.  The Bill has been in the making for almost ten years.

Whilst provisions to deal with proven instances of hate crimes were welcomed in general, the department has said, many expressed their doubts regarding the more recent inclusion of hate speech into the draft provisions, particularly in the light the effect that such provisions could have on freedom of speech. For this to be included is still the preferred route, the department said, but the implications are being carefully studied.

Testing the water

In November 2016, it was Cabinet’s decision to publish the Bill in the knowledge that many would object to the hate speech provisions and consequently the department has openly said the publication of the draft was very much to “test the water”.

Whilst activists have in general expressed in the media approval of the fact that a draft, after such a long wait, has finally appeared, lawyers have commented that if hate speech is to be included then “the bar on onus of proof must be set very high and intent to incite must also be proven beyond any doubt.”

Others have indicated concern that the inclusion of hate speech was so controversial that it could delay a much-needed piece of legislation by endless argument surrounding the curtailment of freedom of speech.


Overall aims

The Bill says it aims “to give effect to South Africa’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance in accordance with international law obligations; to provide for the offence of hate crimes and the offence of hate speech; and the prosecution of persons who commit those crimes [and] to provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences”.

At the time of writing (12 Jan) no Bill has yet been tabled on the subject by the Minister of Justice and Constitutional Development, Jeff Radebe.   However, speaking at a meeting of the working group dealing with the draft, his Deputy Minister, John Jeffery, said that racist remarks made on social media platforms by people such as Penny Sparrow indicated to the department a growing need to include hate speech provisions.

Unintended consequences

Sanja Bornman, the chairperson of the working group and managing attorney of Lawyers for Human Rights’ Gender Equality Project, said the inclusion of the hate speech provisions was “very bad news for victims of hate crime, which affects a wide range of people based on race, nationality, gender identity and many other grounds”.  She added that the group was “Nevertheless, very happy that the Bill was finally out for comment”.

According to media reports, she commented that contrary to the deputy minister comments, that the inclusion of hate speech provisions “were not at the behest of the working group” and that its members were “surprised” to hear that such had been included.

 Social media

This indicates, of course, that the move to include hate speech might have been politically motivated from the top but all the same Bornman has admitted that when work first started on the Bill some years ago, social media did not occupy such a prominent position it now has in society and this move may have come as a result.

The deputy minister said the working group would remain at the job of dealing with the input of submissions and a final draft may emerge in February 2017. The Penny Sparrow incident seems concluded but whether both Ministers are satisfied remains to be seen.


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