Prevention and Combating of Hate Crimes and Hate Speech Bill: public hearings

Meeting report

The Chairperson said six organisations would make oral submissions and today concluded the public hearings on the Prevention and Combating of Hate Crimes and Hate Speech Bill. The Committee would attempt to finalise the Cannabis Bill and the Land Court Bill this term before the 15 June. When the Committee returns from recess in August the Third Term would be used to try and finalise the Hate Speech Bill.

Each submission was allocated 20 minutes. At the end of each submission, the Chairperson thanked the presenter and said the submission would be considered during deliberations on the Bill.

African Policing Civilian Oversight Forum (APCOF)
Mr Themba Masuku, Programme Manager, APCOF, said the oral submission was based on its written submission. The submission would highlight areas that the organisation would like the Committee to pay more attention to when considering the Bill. APCOF welcomed the Bill because it would address an area of great concern which was data collection of hate crimes. When implemented, the Bill would be aligned with evidence-led interventions to address hate crimes, resource allocation and deployment of SAPS to prevent, detect and investigate hate crimes.

Particular concern was placed on the extent to which SAPS would be supported to translate the legislation into operational policing. This would require a significant investment in the development of directives, training and oversight. Elements of the Bill that could be amended to support the role of SAPS:
- Reinforcing the Preamble by anchoring it on the constitutional guarantees of inclusivity and non-discrimination.
- Making specific reference to South Africa’s regional human rights obligations, amending clause 2(a) to read “..as contemplated in regional and international law instruments”.
- The inclusion in clause 6(3) of sentencing options includes community service and restorative justice processes.
- Broadening the scope of clause 9 to include measures to address the broader societal and environmental factors that can lead to hate crimes and hate speech.

The victim impact statement was useful in providing new information to the court on the physical, psychological, social and financial impact on the victim. This position was consistent with the precedent in the Child Justice Act of 2008 and the Criminal Law Amendment Act of 2007.

The Bill should be amended to include a prescribed sentencing option of community service and restorative justice processes. The Committee should consider the amendment to clause 7 to provide specific and time bound direction to the SAPS National Commissioner.

APCOF welcomed the provision in clause 8 which placed the ultimate responsibility of data collection and reporting on the implementation of the Act on the Minister of Justice and Correctional Services. The recommendation was for clause 8 to be amended so that it required the Minister of Justice, SAPS and the NPA to publish this data in an annual report.

The Bill gave hope to many victims of hate crimes and hate speech and was a clear signal of the post democratic mantra “Never Again”.

Discussion
Mr X Nqola (ANC) commented on Mr Masuku’s office and its background which looked quite academic with fully stacked bookshelves. The background gave the impression that the contribution from the presenter would be very impressive. He had a general question to ask. The right to freedom of expression found in s.16 of the Constitution was often dubbed ‘freedom of speech’. How would APCOF suggest the balance be struck between freedom of speech and hate speech within the Bill?

Ms W Newhoudt-Druchen (ANC) did not have a specific question on the submission. A request was made for APCOF to provide background information on who they are, who their members are and whether they provide assistance or training to SAPS.

Mr S Swart (ACDP) said the submission was very impressive. He wanted to add to what Mr Nqola had asked about striking a balance between freedom of speech and hate speech in the Bill. When answering the question APCOF should specifically look at clause 4(2)(a),(b),(c) and (d) in the Bill where an attempt was made to create exemptions in striking that balance read with s.16(1) and (2) of the Constitution. He suggested this answer be submitted to the Committee in writing. The submission should comment if the exemptions in clause 4(2) adequately achieve the balance between hate speech and freedom of speech.

APCOF made reference to the challenges in the implementation of the Bill. The submission mentioned that a significant investment would be required by SAPS to ensure specialised capacity to properly identify and investigate hate crimes, ensure data collection and provide appropriate support and care. The Memorandum on the Objects on page 17 of the Bill stated under the heading ‘Financial Implications’ that "No additional funding is being sought to implement the Bill". Was the Bill adequately funded? Is it APCOF's view that additional funding would be required?

Response
Mr Masuku thanked Members for their questions. The APCOF Research Director would assist in answering the complex questions. Adequate funding of the Bill was very important to ensure it achieves its intended purpose. The funding of the Bill was a critical issue. It was uncertain if the issues flagged as critical by APCOF on the Bill's implementation had been considered by drafters.

A lot of changes would be required within the criminal justice system as SAPS would need to reposition itself to ensure the successful implementation. A lot of training would be required on understanding the Bill. The crimes under clause 3 of the Bill needed to be properly understood by the police. The aim was to minimise or eliminate litigation against SAPS by training SAPS officers to ensure that they do not act unlawfully when implementing the Bill owing to an inaccurate interpretation of the crimes in the Bill. The issue of costing and additional funding was thus very important.

Additional resources were required at police station level. Resources and facilities were needed to protect the dignity and privacy of victims of hate crimes when they reported these crimes. APCOF was a Pan African organisation based in Cape Town. The organisation provided technical support to key state institutions in providing oversight and strengthening democratic policing. The organisation worked closely with SAPS. Presently the organisation was working on an anti-xenophobia project. Training would be rolled out capacitating police officers on understanding immigration law when policing foreign nationals. This was very important. Although police had the right to stop and search they should perform these duties with a clear understanding of what was required by law. This training would be rolled out to all nine provinces to train police officers on immigration law, processes and some of the challenges immigrants face in South Africa.

Ms Louise Edwards, APCOF Programmes and Research Director, added that APCOF had been in existence for approximately 18 years. The organisation worked to promote the establishment of civilian oversight of the police. It started with a very strong base in South Africa because of the establishment of the Independent Police Investigative Directorate (IPID). APCOF was able to look at the ways in which IPID’s establishment impacted policing. This was used as a template for a Pan African response to police accountability.

APCOF worked directly with SAPS on custody management in South Africa. APCOF provided direct technical assistance to mechanisms responsible for exercising oversight of SAPS. A lot of work was being done with the Human Rights Commission (HRC), the National Preventive Mechanisms (NPMs), IPID, the Civilian Secretariat for Police Service and this Committee.

In striking a balance between hate speech and free speech, APCOF’s position was that the Bill should not deal with hate speech. This was not a direct response to the question about the exemptions in the Bill. The offer of an additional written submission on this was noted and this would be considered.

From a practical and constitutional level, including hate speech would result in legal uncertainty. Mechanisms dealing with hate speech already existed – for instance the criminal charge of crimen injuria and PEPUDA were amongst these existing mechanisms.

On the costing concerns, the APCOF stance was that the additional support and implementation support should be provided for what currently existed in the law to regulate hate speech. A new mechanism should not be created. APCOF would be open to an additional submission on this.

Media Monitoring Africa (MMA)
The submission was led by Ms Thandi Smith, MMA Head of Programmes, followed by Adv Ben Winks. The submission gave a brief overview of the objectives of the organisation and its work to promote the development of a free, fair, ethical and critical media culture in South Africa. The organisation engaged in extensive work to navigate for the appropriate balance to be struck between freedom of expression and other competing rights and interests.

The Bill was an excellent step toward eliminating the historical scourge of hate crimes and hate speech in South Africa. However, in its current form, it was fundamentally and fatally flawed. It differed from international good practice, was inconsistent with constitutional provisions and would not withstand constitutional scrutiny by South African courts. MMA proposed expanding the grounds for designating a crime to be a hate crime in terms of clause 3(1) of the Bill. All grounds of unlawful and unfair discrimination provided for in s.9(3) of the Constitution should be included in the definition of a hate crime. A new definition of hate speech was recommended to significantly narrow the proposed definition of hate speech in clause 4(1)(a) of the Bill. The narrowing of this definition would enable the Bill to strike the appropriate, constitutionally endorsed balance between hate speech and freedom of expression. Three main concerns about the constitutionality of clause 4(1)(a) of the Bill:
- It disproportionately imposed a criminal prohibition for the same conduct already subject to a civil prohibition under PEPUDA.
- The disjunctive approach and the objective test disproportionately limited the right to freedom of expression.
- The provision criminalised private communication and disproportionately limited the right to privacy.

Aspects of the Bill required further amendment to bring the legislation in line with the Constitution and best practice. The changes proposed by MMA required no major policy reconsiderations and did no damage to the coherence of the Bill. The recommendations would help the Bill achieve the illusive balance between protecting the public from crimes inspired by hatred and protecting freedom of expression.

Discussion
Mr Swart thanked MMA and said their arguments were very persuasive. There had been discussions on whether the hate speech aspects were truly needed when PEPUDA and other relevant legislation existed. Should the hate speech section in the Bill be completely excluded given the existing legislation? The hate speech aspects of the Bill might trigger constitutional litigation which may delay and prevent the hate crime aspects of the Bill from coming into law. It was unlikely that the hate crime aspects would be disputed and challenged in court. The hate speech aspects of the Bill had been met with much opposition which was voiced during the oral submissions and the Department had received over 7 800 petitions on this. Should the Committee continue with the hate speech provisions? Would the proposed amendments by MMA which linked the hate speech provisions directly to s.16(2) of the Constitution sufficiently safeguard those provisions from constitutional litigation?

Ms Newhoudt-Druchen thanked the MMA for the submission. Ms Smith mentioned that MMA had worked with children and that a project existed where the youth were given an opportunity to make comments on the Bill. What was the outcome of this project and what comments did the children have on the Bill?

Response
Adv Winks replied that it was not appropriate to completely jettison the hate speech chapter. Under international law, South Africa was obliged to criminalise extreme hate speech. The language used in the International Covenant on Civil and Political Rights (ICCPR) to describe hate speech defines it as the advocacy of hatred which constituted incitement to discrimination, hostility or violence. Extreme hate speech needed to be criminalised. The safe method to criminalise hate speech would be to use the formulation proposed by MMA which was to use the language of s.16(2)(c) of the Constitution. No person with reasonable legal advice would challenge a provision which simply used the language of s.16(2)(c ). If the hate speech provision used the language proposed by MMA then a constitutional challenge would not succeed.

It would be an extreme reaction to completely remove the hate speech provisions. Although it was important to deal with the down-streaming incitement to cause genocide it was equally as important to deal with the upstreaming incitement advocating for the persecution of a person or group. A few examples were hate speech resulted in detrimental consequences was in the Rwandan genocide, Yugoslavia and Nazi Germany.

Ms Smith explained that MMA had held a workshop with 55 youth. In their submissions, the youth placed emphasis on the prevention and combating of hate speech. These submissions would be shared with the Committee. One of the reasons MMA focused on restorative justice when dealing with hate speech was because imprisonment would not solve the problem. This sentiment of focusing on restorative justice instead of imprisonment was directly drawn from MMA’s interactive project with the youth.

Consortium for Refugees and Migrants in South Africa (CoRMSA)
Mr Thifulufheli Sinthumule, CoRMSA Executive Director, said CoRMSA was a national network of 26 member organisations whose objectives and mission were to promote and protect the human rights of asylum seekers, refugees and migrants in ways that promoted the well-being of all in South Africa, the SADC region and globally.

There was concern that the Bill placed more emphasis on the criminalisation of offences and was silent in outlining processes and procedures to address the root causes. CoRMSA proposed that the drafters outline and establish mechanisms to address the causes of hate crimes and hate speech and the rehabilitation processes concerned.

CoRMSA proposed that:
- clause 1 definitions include terms like “Asylum Seeker”, “Xenophobia”, Racial Discrimination” “Racism” “Refugee” and "Statelessness" as defined by the United Nation High Commission for Refugees.
- In clause 2 Objects of the Act, insert (h) “to provide for the promotion and addressing the roots causes and rehabilitation process”.
- In clause 3(1) insert (k) “asylum seekers and statelessness” as group of people that exist and live in the Republic.
- In clause 4(1)(b) insert “unintentionally” to read - Any person who “unintentionally “or intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech". The insertion applies to 4(1)(c) as well.
- In clause 5(1) Victim impact statement, insert “or testimony” to read - “For purposes of this section, a victim impact statement means a sworn statement or affirmation or testimony”…

There was lack of clarity on which law the Bill was trying to support or amend. In clause 6(a) the Bill indicated that “penalties which the court sentencing the person considers appropriate and which is within that court’s penal jurisdiction”. This statement left it open for the court to decide which law to use when sentencing the perpetrator.

CoRMSA was against the view that the training should be for “Judicial Officers” only for the purposes of this Act. This training should be escalated to the Chapter 9 Institutions, decision-makers, officers and public prosecutors. The meaning of “social context training” in clause 9(3) should be clarified or defined in the Bill.

There was a need for legal regulations to guide behaviour change rather than purely focusing on criminalisation. The Bill should however not stop at criminalising hate crimes and hate speech. But, it should take the important step of tasking the state.

Discussion
Members did not have any questions for CoRMSA. The Chairperson thanked the organisation for taking the time and effort to enrich the process of law-making in South Africa.

Association of Christian Media (ACM)
Mr Philip Rosenthal said that ACM was composed of 70 organisations which included about 30 community radio stations and printed media. Varying opinions were represented and expressed through these media streams essentially facilitating public debate.

Everyone listening should consider the possibility of being wrongfully accused of hate speech under the Bill. The definition of ‘hate speech’ in the Bill is overly broad and would likely lead to spurious litigation criminal charges and threats by special interest groups. Hate speech should not be defined any more broadly than as in s.16(2) of the Bill of Rights. The definition of publication of hate speech as contained in the Bill would have a ‘chilling effect’ on all reporting and public debate, even in opposition to ‘hate speech’. The legislation exposed ACM’s members to the risk of spurious litigation, censorship, criminal charges and harassment. Certain special interest groups have repeatedly attempted in court and at complaints authorities to misconstrue Christian teaching on sexuality and marriage as ‘hate speech’. This would discourage legitimate discussion on these issues. Existing civil and criminal law and codes of conduct adequately protect against ‘hate speech’ and there was no need or benefit in new legislation. The revised Bill failed to remedy the concerns expressed in ACM’s previous submission.

Mr Rosenthal referenced a few case examples where individuals were charged with hate speech and faced sanctions. He submitted that these incidents were not representations of genuine hate speech “where people were wilfully intending to harm other people”.

The Bill would create a chilling effect on legitimate free speech and debate. There was no need for it because existing law and codes of conduct at complaints authorities adequately dealt with the matter. The Bill should be abandoned. If the state was unwilling to abandon the Bill entirely, then the risks could be reduced by narrowing the Bill's definition of hate speech to speech unprotected by s.16(2) of the Bill of Rights. If the state was unwilling either to abandon the Bill or narrow the definition of hate speech, then the exceptions should be substantially strengthened.

Discussion
Members did not have any questions for ACM. The Chairperson thanked the organisation for making a contribution towards South Africa’s law-making process. All views would be taken into consideration when the Bill is evaluated by the Committee.

Same Love Toti, an organisation which had made an oral submission on 17 May, wrote in the Zoom Chat in response to the ACM submission that “hate speech is not debate or expressing one’s faith system nor free speech…it goes further than just offensive speech [and] should always be rejected in a democratic country.”

Campaign for Free Expression (CFE)
Prof Anton Harber, CFE Executive Director, said CFE is a non-profit body dedicated to defending and expanding the right to free expression for all in Southern Africa. It was independent and fiercely non-partisan.

CFE submits that criminalising hate speech would impinge on the freedom of expression, which was the lifeblood of South African democracy, without effectively curbing it. There were less restrictive means of effectively dealing with hate speech which already existed in our law. These include civil hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act as well as the criminal offences of, at least, incitement, crimen injuria and assault.

Clause 3 of the Bill strengthened these measures by making them more serious offences if driven by hate. Clause 4 should be deleted in its entirety. If not deleted, that criminal sanction should only target the most extreme expressions of hate speech, namely those the Constitution does not protect, as set out in s.16(2) of the Constitution.

There were other key flaws in the Bill which rendered it unconstitutional:
- The criminal prohibitions target such a wide spectrum of speech that they would not be justifiable in terms of s.36 of the Constitution.
- The Bill imposed liability without the accused having a guilty mind.
- The prosecutorial discretion in the Bill did not cure the constitutional defects.
- The offence of distribution of hate speech was so broad that it would catch even those who distributed it to expose the culprit.
- The exception for “the publication of any information, commentary, advertisement or notice” in 4(2)(c) was impermissibly vague and unhelpful.

Government should never again resort to the heavy hand of criminal law to limit free speech. Hate speech was to be deplored and the aims of the Bill were laudable. CFE supported clause 3 but clause 4 should be excised. The Bill in its current form would not pass constitutional muster.

Discussion
The Chairperson thanked the organisation for its contribution towards the legislative drafting. The issues raised were very important and would be revisited. The Department would respond to each submission that was made.

Afriforum
Mr Ernst Van Zyl, Afriforum Campaign Officer for Strategy and Content, said that AfriForum supported imposing sanctions on actual hate speech. However, the current Bill radically distorted the ordinary meaning of the term hate speech. If the Bill were passed into law, it would effectively criminalise constitutionally protected speech. The aim of the submission was to demonstrate that the Bill in its current form infringed on the right to freedom of expression.

Afriforum drew a distinction between actual hate speech (which is constitutionally unprotected speech that incites harm or violence against vulnerable groups) and hate speech as defined by the Bill (which prohibits protected speech). The importance of the right to freedom of expression was examined by demonstrating its role in a functioning democracy, the search for truth and the personal development of citizens. Afriforum argued that the prohibition in the Bill was a severe infringement on the right because of the penalty it imposed and the perturbing effect it had on freedom of expression.

A legitimate purpose of the Bill would be to protect people from imminent violence and incitement to cause harm. This could be achieved without unduly infringing the right to freedom of expression by using the limitations set out in s.16(2) of the Constitution to define hate speech.

Afriforum recommends that clause 1 of the Bill must define 'harm' as deep emotional and psychological harm that severely undermines the dignity of the targeted group, or a physical, or economic harm.

The following definition must replace the current definition in clause 4 of the Bill:
(1) (a) Any person who unlawfully and intentionally, publicly advocates for –
(i) the incitement of imminent violence against any person or group of persons for any reason, including reasons based on: (aa) age; (bb) albinism; (cc) birth; (dd) colour; (ee) culture; (ff) disability; (gg) ethnic or social origin; (hh) gender or gender identity;(ii) HIV status; (jj) language; (kk) nationality, migrant or refugee status; (ll) race; (mm) religion; (nn) sex, which includes intersex; or (ii) hatred towards any other person or group of persons based on race, ethnicity, gender, or religion, or sexual orientation, and which constituted incitement to harm was guilty of the offence of hate speech.

When determining the sentence for any person convicted of an offence referred to in clause 4, a court may impose one or more of the following penalties by requiring the offender to: (a) be imprisoned for a period not exceeding three years, but only in cases where the offender incited harm against a person or group of persons and the person or group of persons suffered actual harm; (b) make an unconditional apology; (c) perform acts of community service; (d) pay to the victim or an organisation that represents the victimised group– (i) an amount not exceeding R100 000 in the case of a first conviction; or (ii) an amount not exceeding R500 000 in the case of any subsequent conviction.

The costs of adopting the definitions of harm and hate speech imposed by the Bill would be heavy. The state could take less restrictive measures by:
- changing the definitions of 'harm' and 'hate speech' used in the Bill to render it constitutional;
- addressing the problem of arbitrary prosecutions under the Bill;
- using restorative justice measures to deal with most instances of hate speech and reserving imprisonment for cases where the targeted person or group of people suffered actual harm as a result of harm being incited against them.

Discussion
Mr Nqola thanked Afriforum for taking the effort to provide its views on the development of the Bill. Mr Van Zyl correctly referenced s.16(2) of the Constitution which said that the right in s.16(1) freedom of expression did not extend to the advocacy of hatred based on race. Did Afriforum consider racism to be a hate crime?

Response
Mr Van Zyl replied that a hate crime as defined was a crime committed against a person or group motivated by racial hatred. Racism would therefore be a hate crime since it fell into the criteria of the definition.

The Chairperson thanked Afriforum for its contribution. All comments and submissions would be taken into consideration when the Committee dealt with the Bill. The public hearings which had started last term were now concluded. The hearings had been stretched over three days. All organisations that had made an effort to make submissions were thanked. The submissions were valuable and made enriching contributions to the legislative process. The Committee would start its clause-by-clause evaluation of the Bill once it returned from recess. It would attempt to finalise the Cannabis Bill and the Land Court Bill this term before 15 June. When the Committee returned from recess in August, the Third Term would be used to finalise the Hate Speech Bill.

Meeting was adjourned.