Prevention and combating of Hate Crimes and Hate Speech Bill approved

May 1st, 2018

By Kgomotso Ramotsho

The Department of Justice and Constitutional Development announced that on 14 March Cabinet approved the Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill). In a statement released by the Department of Justice and Constitutional Development, Deputy Minister, John Jeffery, said ‘There is no question that incidents of racism and radical discrimination are all too frequent in our society and we are confident that the Bill, once passed, will contribute to eradicating not only racism, but all forms of discrimination, in our country.’

The statement added that the department wanted to respond to the allegations made, among others, by the Hate Crimes Working Group, that the Bill was being delayed. The department said the Bill was not delayed and there can be no dispute that the Bill is complex and sensitive in nature, requiring careful consideration, which took time.

The department noted that after the Bill was published in the Government Gazette for comment, it had received 75 854 submissions from institutions and individuals. According to the statement many submissions were received after the deadline, however, even those views and concerns expressed were submitted, considered and have, in many instances, been addressed in the revised Bill.

The statement added that while the submission of the Bill to Cabinet might not have happened within the expected timelines, it should be borne in mind the dialogue arising from the public discourse on the Bill had implications of its own and further research was required following the extensive comments received. This research was undertaken and there were further engagements with certain stakeholders.

The department said that government takes the views and opinions of the public and civil society very seriously as it prepares new legislation and, as the case with any Bill being submitted to Parliament, it underwent various internal processes, one which was the Socio-economic Impact Assessment System. A copy of this assessment, which is a public document and available for scrutiny, indicates the circumspection with which the department dealt with the various aspects of this piece of draft legislation, all the more so as the subject matter of the Bill is sensitive and contentious in nature.

The department added that it must be noted that most of the concerns around the previous draft of the Bill, have indeed been addressed in the revised Bill and the Bill that was approved was considerably different from the earlier Bill that was made available for public comment. The provisions dealing with, in particular hate speech, have been significantly changed.

The department pointed out that the qualifying criteria for hate speech is a clear intention to be harmful or to incite harm or promote or propagate hatred on the basis of –

  • age;
  • albinism;
  • birth;
  • colour;
  • culture;
  • disability;
  • ethnic or social origin;
  • gender or gender identity;
  • HIV status;
  • language;
  • nationality;
  • migrant or refugee status;
  • race;
  • religion; or
  • sex, which includes intersex or sexual orientation.

The statement stated that the revised Bill specifically excludes anything done in good faith in the course of –

  • engagement in any bona fide artistic creativity;
  • performance or other form of expression;
  • academic or scientific inquiry; and
  • fair and accurate reporting or commentary in the public interest, insofar as it does not advocate hatred that constitutes incitement to cause harm, from the ambit of hate speech.

It also excludes the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, from the ambit of hate speech.

The department noted that the exclusions also find resonance with s 16 of the Constitution. The Bill, which criminalises both hate crimes and hate speech, will be introduced into Parliament shortly, whereafter, it will go through the normal parliamentary legislative process.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2018 (May) DR 12.

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