…..article dated 9 September 2021……
Parliament to help in setting rules to follow…..
Resuscitated by Parliament in the light of a recent finding by the Constitutional Court (CC) regarding its wording is the Prevention and Combating of Hate Crimes and Hate Speech Bill, things are now in a rush to finalize in order to give effect to South Africa’s obligations in terms of both the SA Constitution and the International Human Rights body on matters of racism, racial discrimination, xenophobia and related intolerance.
New kind of crime
John Jeffery, Deputy Minister of the Department of Justice and Constitutional Development(DOJ) explained to MPs of the justice portfolio committee who were meeting on the subject that what the Bill will do is elevate certain issues to the level of hate crimes and to create the offense called hate speech.
The Hate Crimes and Hate Speech Bill was introduced in back in 2018 and created a category of hate crimes, as well as hate speech later, taking into account the prejudice towards a victim based on age, gender, colour, and other defined characteristics with some partial exemptions for hate speech. These were bona fide artistic expression, academic or scientific inquiry, fair or accurate reporting and a bona fide interpretation of a religious tenet, belief, teaching, doctrine, or writings.
The Deputy Minister told Parliament that any prosecution can only be through the Director’s office at the National Prosecuting Authority (NPA) and to be included with the prosecutorial documents there is provision for a victim’s statement, a departure from usual procedure.
On this, he said that the Hate Crimes and Hate Speech Bill clearly defines what a victim impact statement is, a sworn statement by the victim reflecting the physical, psychological, social, economic or any other consequences of a hate crime or hate speech on a victim. The contents of the victim impact statement will be admissible as evidence, unless good cause to the contrary is shown, he concluded.
The Bill commences after the preamble with its main theme that “any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably construed to demonstrate a clear intention to be harmful or to incite harm or to promote or propagate hatred based on age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality or migrant or refugee status, race, religion, sex, which includes intersex or sexual orientation, is guilty of the offence of hate speech.”
What makes the Bill urgent in current times is clause (b). This says, “An offence when hate speech material is intentionally distributed or made available in cyber space” thus making the legislation relevant to the current debate regarding social media and electronic communications and the many societal problems emanating.
Similarly, clause (c) extends culpability by stating, “any person who intentionally displays any material or makes available any material which constitutes hate speech, which is accessible by or directed at a specific person who can be considered to be a victim of hate speech, is guilty of an offence.”
To what extent hate speech and the degree of it that constitutes a crime is what is to be interpreted by the police authorities is dependent upon its “hurtfulness”, it would seem from what Deputy Minister John Jeffery said. What is “hurtful” and what are the degrees of the “hurtfulness”, is therefore what the parliamentary debate will now be about, MPs were told.
DOJ needs recommendations on this from Parliament as representing “the people”, parliamentarians were told, and a suggestion for penalties as well is needed, all part of “democratic debate needed” in drafting the Bill.
Discussion was furthered by Chair Bulelani Magwanishe on the “degrees of hurtfulness” issue and, in layman’s terms, it appears that this is where the Hate Crimes and Hate Speech Bill directs Parliament to add sort of a clear schedule or table of parameters for SAPS to apply in the field and operate when presenting a criminal docket to the NPA.
Chairperson Magwanishe stopped any debate starting on this particular point and he told MPs that they had to hear a lot of experts first and have much input at a later date to avoid the matter descending into a talk show. This was to be organised.
Why the delay?
MPs were told that the original delay of some 18 months in re-introducing the Hate Crimes and Hate Speech Bill was due to the fact a decision on the issue of “hurtful” was also a matter for the Constitutional Court under Qwelane vs Human Rights Commission case under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).
The ConCourt outcome broadly was that the prohibition grounds agreed under PEPUDA were sufficient to fulfil the purpose of a hate speech prohibition as well, and that the limitations already worded were also proportionate to an open and democratic society.
A separate clause in the Bill requires the State to promote awareness of the prohibition of offences and for steps aimed at prevention, with training programmes, including “social context training programmes”, to be developed with the South African Judicial Education Institute on the whole subject of the prohibition, prevention and combating of hate crimes and hate speech.
ConCourt’s rider sent down with their recent judgement is that both the Hate Crimes and Hate Speech Bill and an amending PEPUDA Bill are with the President for signature into law within 24 weeks in the light of international obligations and the necessity for law on both subjects.
Have Your Say
The Hate Crimes and Hate Speech Bill has already been published for comment by Parliament back in 2018 and consequently parliamentary rules will allow the Bill to be debated once the new tabling is with the Speaker. As the Bill is a Section 76 tabling and will therefore need the required provincial hearings, debate and mandates from all nine provinces, the Minister undoubtedly sees this process as a time obstacle knowing that the presidency is particularly conscious of the Section 76 requirement. (October 2020) Busy parliamentary period ahead
Nevertheless, Chairperson of the Portfolio Committee on Justice, Bulelani Magwanishe, together with all members of the Committee across party lines were adamant that further hearings must be called for by the National Assembly. He and MPs agreed that any further debate by the senor parliamentary committee had to be held in the light of such hearings before Parliament. The issues were sensitive and to rush matters could be perceived as undemocratic, ConCourt ruling or not, he said.