The ANC announced in 2015 that it planned to persuade Parliament to repeal the common law crime of criminal defamation, which criminalises libel but has been extended to insulting and derogatory statements in other countries.
Although criminal defamation is infrequently used in SA, similar laws have been used and abused in many other African countries to stifle criticism of their presidents and other political leaders. Many editors and journalists have been jailed — some for lengthy periods — under charges brought against them for publishing criticism of political leaders and their policies. Many of those charges have been trumped up, while some have been based on allegations of publishing false news in which the arbiters of the falsity are government officials anxious to protect their leaders and the government.
So the media in SA extended a hearty welcome to the ANC’s move, which originated with the party’s recently formed research group, headed by lawyer Krish Naidoo. The group declared that defamatory statements made through the media should not be considered a criminal offence.
A bill repealing the law was drafted and was expected to be dealt with in Parliament by May 2016. But several months later, inquiries about progress were met with the response that the justice minister had raised questions about the bill and that it would be presented later.
Meanwhile, the ANC has published for public comment a new draft bill under the title of the Prevention and Combating of Hate Crimes and Hate Speech, which has left journalists and civil society organisations dumbfounded by content far removed from the ANC’s lofty ideals over criminal defamation. The bill proposes sweeping inroads on freedom of expression and freedom of the media and, if passed, will be seen as the ANC sneaking in a highly repressive law, which will take on the mantle of the criminal defamation law.
The offences outlined in the bill are framed extremely broadly, extending to conduct and speech normally acceptable though perhaps regarded as irritating or even offensive but not meriting a criminal charge. The provisions could be applied to humorous commentary on the mores of society and have alarmed some comedians. While one comedian supports the bill because too many people have "gotten away with a slap on the wrist for hate speech", three others express grave concern that the bill is "too broad and very restrictive" and that it will prevent them from making critical jokes about the president and the state of the nation.
John Vlismas, voted the best stand-up comedian at SA’s first Comedy Awards in 2007, said he took his role of making jokes about important things very seriously. He warns that using the law against comedians would be a precursor to its use "against everybody".
Censored
Some also fear that jokes that make comparisons, mostly derogatory, between, say, the farmer, the Jew and the Englishman, may have to be censored because they could be classified as hate speech under this legislation. Comedian Pieter-Dirk Uys says that while hate speech is not acceptable, it cannot be criminalised at the cost of free speech.
There are also fears that the bill opens opportunities for the introduction of offences that equate with "insult laws", an offshoot of criminal defamation law.
The bill defines hate speech as when a person intentionally "by means of any communication whatsoever … advocates hatred …. or is threatening, abusive or insulting towards any other person or group of persons" — seen as a reversion to "insult laws" and criminal defamation — or "demonstrates a clear intention … to incite others to harm any person or group of persons" whether or not anyone is harmed. This extends to stirring up violence against, or bringing into contempt or ridicule, any person or group of persons.
The grounds on which advocacy is based relate to 17 human characteristics: race; gender; sex, which includes intersex; ethnic or social origin; colour; sexual orientation; religion; belief; culture; language; birth; disability; HIV/AIDS status; nationality; gender identity; albinism; and occupation or trade. The concern is that the characteristics are defined extremely broadly and encompass any distinguishing personal feature. That is far more than the four characteristics listed in the Constitution. In addition to oral, written, illustrative, electronic and data communication, it extends "without any limitation" to "any gesture", "display", "expression", "visual or other descriptive matter" and "representation or reference".
The bill thus embraces any human characteristic and activity and raises the danger of the temptation this holds for the authorities, including police officers and prosecutors, to base charges on almost any human emotion as expressed by facial or body expression or innuendo.
These provisions in the bill will result in severe curbs on freedom of expression, the core value of a civilised and democratic society. Such curbs will prevent people from having access to the views of others about what is happening in society and the conduct of governance, which will place a severe limitation on their freedom.
Motivated by Prejudice
A hate crime is another offence under the bill. It is the commission of any offence under any law by a person motivated by prejudice, bias or intolerance towards the victim because of the characteristics — or perceived characteristics — that underlie the offence of communicating hate speech. An important feature of hate speech is the necessity of proving the culprit incited or brought about "harm" to the victim. This requirement is a cardinal principle laid down in the Constitution and the absence of this requirement in a charge may provide a certain amount of protection for an accused person.
But the definition of harm, like so many other aspects of the bill, is wide. It includes any mental, psychological, physical or economic harm.
The penalties for hate speech are severe. For a first offence a three-year jail term or a fine, not defined but according to commentators likely to be heavy, can be imposed and for a second offence the prison sentence can be 10 years or a commensurate fine. Punishment for hate crime is more variable, being subject to legal and court jurisdiction, but the severity of the maximum is even more daunting, extending in some instances to a life sentence.
The ANC would be well advised to proceed with the speedy repeal of criminal defamation and then devise other, less damaging methods of dealing with the evil of hate speech.
• Louw is vice-president of PEN SA and a former editor of the Rand Daily Mail.
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