A Christian Insight Into the Prevention and Combating of Hate Crimes and the Hate Speech Bill.
Article on behalf of DiaLOGOS by: Cheryllyn Dudley (Former MP 1999-2019)
This highly contested piece of draft legislation has generated a large amount of debate. Earliest talks around the formation of the Bill began in 2009 and originally intended to solely address the offence of hate crimes. It was only in 2015, partly in response to the public outrage of the ‘Penny Sparrow incident’, hate speech was included.
The interested parties who submitted input on the Bill, ranged from conservative religious groups, mostly not wanting to be denied the right to speak out against homosexuality; to human rights groups defending the constitutionally-entrenched right of freedom to expression; to politicians’ and journalists’ with concerns that the political agenda of the Bill was to silence critics of government.
The bill outlines the offence of a hate crime and the offence of hate speech. It also details the sentences that may be imposed on persons who commit these offences.
The less contentious aspect of the Bill is the creation of hate crimes as a stand-alone category of offences and the requirement for data and reporting on such crimes. Hate crimes are thought to be different from other crimes and worthy of extra attention for several reasons: firstly, violent hate crimes have been found to be more brutal than similar non-hate crimes; secondly, hate crimes often cause the direct victim to suffer from psychological stress, far more than a non-hate crime victim; and thirdly, hate crimes are likely to have a serious negative impact on the community or group that the direct victim belongs to. The Bill affords crimes based on prejudice and hate the seriousness it deserves.
Hate speech on the other hand is more complex and the concern is that in some parts of the world it creates more problems than it solves. Basically a person commits ‘hate speech’ in terms of this bill when they publish or share statements that clearly intend to be harmful or incite harm. This includes promoting or propagating hatred based on the following categories:
- * 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
- * Sexual orientation
The bill also makes it an offence to knowingly distribute hate speech material in cyberspace – i.e., digitally or on digital channels like WhatsApp.
It is not difficult to see why this has become an issue of public interest and concern.
The bill excludes:
- * Artistic creativity;
- * A performance or another form of expression;
- * Academic or scientific inquiry;
- * Fair and accurate reporting;
- * Commentary in the public interest.
- * religious tenets, beliefs, teaching, doctrine or writings.
However, artistic creativity or performance or espousal of religious doctrine will not qualify for the exemption from hate speech if it advocates hatred that constitutes incitement to cause harm based on any protected grounds.
FREEDOM OF RELIGION
While, in my view, the clauses above are reasonable – and many, like the Jewish community and those who have been frustrated by a lack of response to the inflammatory hate speech that proliferated EFF rhetoric in recent years, will be in favour of such protection – it is also subjective and those out of step politically and religiously are likely to find it constraining and inconvenient.
Christianity of course is what it is today despite constraints and even persecution and while it continues to be critical for Christians in Politics to do what they can to protect freedom of choice in general and Freedom of Religion and Belief in particular this will not always be possible.
We will always need to be praying for those in authority and to prayerfully discern when our testimony of exemplary behaviour and peaceful existence also requires courage to continue our prayers and sharing the good news in our communities despite threats and opposition. The important issue for me is that we are motivated by love and not retaliation and attitudes of entitlement.
The problem seems to be primarily with penalties applicable in the case of hate speech which include a fine or imprisonment for a period not exceeding three years in the case of a first conviction. This can be extended to a fine or imprisonment for a period not exceeding five years in the case of a subsequent conviction.
Hate speech, most often being a product of socialisation – a response to societal norms and upbringing – to a large degree needs to be confronted by means of rehabilitation and behavioural-change making incarceration, an inappropriate intervention. This is especially true considering the state of South African prisons which are a far cry away from being rehabilitative.
South Africa does of course already have a range of legal mechanisms in place to deal with hate speech. The Promotion of Equality and Prevention of Unfair Discrimination Act, more commonly known as the Equality Act, creates a civil law offence of hate speech and provides various sanctions. These include payment of damages, as well as more restorative measures such as a formal apology and the furnishing of regular progress reports to the court with regards to any remedial order that has been granted. These remedies encourage the hate speech culprit to examine the basis of his/her prejudice, and to make amends.
While we endeavour to ensure the Church has the freedom to say what it believes, to live what we believe and to share what we believe, we must keep in mind that this will mean others must be able to exercise the same freedom in line with their belief. Sadly those who feel vulnerable believe they are in need of protection and although this protection will have an up side it will also have a down side. This however is the reality with all attempts to address the needs and wants of the most vulnerable in society. Nevertheless attempts must inevitably be made.
To be the light in darkness means darkness is a given. Christians or people of THE WAY will therefore be walking in love and forgiveness and doing what we can for others, despite the circumstances. We can also only do for others, what they allow – imposing our way is not THE WAY!”
For the full document on The Prevention and Combating of Hate Crimes and the Hate Speech Bill (https://pmg.org.za/bill/779/#bill-version-3062)