Is the prohibition and criminalisation of hate speech in South Africa constitutional?
South Africa celebrates more than twenty years of democracy based on democratic values, social justice, and protecting human rights. Despite this, racial tension and hate speech occurs with alarming frequency. To redress this, South Africa introduced a statute which prohibits hate speech, The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). More recently, a new bill has been proposed, The Prevention and Combating of Hate Crimes and Hate Speech Bill (Hate Speech Bill). The Hate Speech Bill purports to criminalise hate speech. Unfortunately, both the prohibition and criminalisation of hate speech conflict with the right to freedom of expression envisaged in section 16 of the Constitution of South Africa (Constitution).
Hate speech entails any discriminatory speech which stems from hatred and aims to attack or harm an individual or group of individuals. While protecting against hate speech is important, such protection should not violate other equally important rights, in particular, the right to freedom of expression. The difficulty with finding an appropriate balance between the prohibition of hate speech and freedom of expression lies in the fact that free speech serves as a central pillar of constitutional democracy. Accordingly, it ought to enjoy the highest standard of protection, particularly in a country which has been dominated by prejudicial apartheid regimes and systemic discrimination. To deny people their freedom is to deny them their dignity and their voice. This constitutionally protected right, however, is not ‘limitless’.
Section 16(2) of the Constitution provides that the right to freedom of expression does not extend to (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Section 10 of the Equality Act provides that no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds as stated in the Equality Act, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.
It is evident that the scope of section 10 of the Equality Act, which prohibits hate speech, is broader than section 16 of the Constitution. First, hate speech in the Equality Act extends to at least seventeen protected grounds, whereas section 16(2) of the Constitution only protects four grounds – race, ethnicity, gender and religion. Moreover, section 10 determines that hate speech need not cause actual hurt or harm. It is sufficient that the words can “reasonably” be interpreted to hurt or harm. Section 16 of the Constitution does not refer to the “reasonable” interpretation standard. In addition to the broadness of section 10, it is also ambiguous. For example, it states that words based on certain grounds are prohibited – it is thus not clear whether conduct that amounts to hate speech but does not constitute words is similarly prohibited.
The inconsistencies between section 10 of the Equality Act and section 16 of the Constitution should be addressed. In its current form, section 10 violates the right to freedom of expression. Further, the Hate Speech Bill should remove the proposition to criminalise hate speech. This is because, if and to the extent that section 10 is amended to reflect section 16, curing some of the deficiencies discussed in this blog, it would be sufficient to protect against hate speech while also affirming the right to freedom of expression.