South Africa Releases Draft Bill Proposing Jail for Hate Speech

Melanie Nathan

2 months ago

Historic Hate Crimes Bill released – proposes 3 years in jail for hate speech

Ten years in the making, the Prevention and Combating of Hate Crimes and Hate Speech Bill has now been published in South Africa, for comment. The proposed legislation, inter alia, provides a three yer sentence for those found guilty of hate speech.

Despite attempts by organizations and activists, including a Task Force partnered by government and predominantly LGBTI organizations, which I had participated in initiating in South Africa back in 2011, initially intended to examine the possibility of so called “corrective rape” against lesbians to be considered a hate crime, this bill does not make hate crimes a new standalone crime. Instead, as Mambaonline points out:

“….. it allows for the possible hate motivation behind criminal acts to be given additional legal recognition. This will let the authorities track the number and nature of these crimes, which was not possible before.”

Under the legislation, should any existing type of crime be motivated by prejudice, bias or intolerance towards the victim on the basis of various factors (such as race, religion, gender identity or sexual orientation, among others), this will add an “aggravating” factor to the crime.

A judge would then be able to consider this aggravating factor in the sentencing of the perpetrator of the crime.

The bill also criminalizes hate speech, which is defined as any form of communication (verbal, written or physical) that “advocates hatred towards any other person or group of persons; or is threatening, abusive or insulting towards any other person or group of persons”. This measure, if enacted, is likely to be challenged for its constitutionality. It also deals with the distribution or publishing of hate speech via, for example, social media.

In South Africa, the process of making a law may start with a discussion document called a Green Paper that is drafted in the Ministry or department dealing with a particular issue. This discussion document gives an idea of the general thinking that informs a particular policy. It is then published for comment, suggestions or ideas. This leads to the development of a more refined discussion document, a White Paper, which is a broad statement of government policy. It is drafted by the relevant department or task team and the relevant parliamentary committees may propose amendments or other proposals. After this, it is sent back to the Ministry for further discussion, input and final decisions.

Justice Minister Michael Masutha explained that the bill was influenced by similar pieces of international legislation, such as those in Kenya, Canada and Australia.

“We are clear that this bill of itself may not end racism and other intolerances but will create an instrument that will hold those guilty of committing acts accountable before the law,” he said.

The public, including human rights groups, have until 1 December to submit comments on the draft legislation.

To read the draft Prevention and Combating of Hate Crimes and Hate Speech Bill, click here.