The Hate Crimes and Hate Speech Bill, recently published for public comment by the Department of Justice and Constitutional Development, has generated considerable debate, specifically in relation to the provisions on hate speech. In particular, many church leaders expressed fears that the bill would “criminalise the Bible”.
The bill does two things. First, it creates a category of hate crimes. These are existing crimes motivated by a dislike of the group the victim belongs to. For example, a person throwing a brick at a mosque will be committing malicious injury to property, but once the bill is passed, if it can be proved that the brick was thrown at the mosque was because the person dislikes Muslims, it will be considered a hate crime.
If crimes are found to be hate crimes, this elevates the seriousness of the crime, the way it is dealt with by the criminal justice system and the penalties imposed.
Second, the bill creates the crime of hate speech. Including hate speech as a crime was a more recent insertion and was added in response to the slew of racist diatribes being circulated on social media. The only remedy for hate speech is to approach an equality court for a civil order in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act. It was felt criminalising such conduct would act as a deterrent and cause people to think twice before expressing such views.
Putting a bill out for public comment is not a meaningless exercise. It is a real attempt to hear the public’s views. All submissions and inputs are seriously considered before a final draft of the bill is put before the cabinet.
Religious leaders’ concerns that the wording of the bill will restrict their ability to preach the word of God, is something we take seriously. It is not the bill’s intention to restrict religious freedom. Equally, incitement of violence and harm against certain groups in society is not something that can be allowed.
We have seen on our continent that words can cause death and destruction. Hate speech was a major contributing factor in the Rwandan genocide as well as the ethnic violence in Kenya before and after elections. Both countries now have laws restricting hate speech.
A good example of hate speech from a minister of religion is that of pastor Steven Anderson, who is from the Faithful Word Baptist Church in America and is known for his hatred of homosexuals.
After the June 12 terror attack at a nightclub in Florida that left 49 people dead, he said: “The good news is that there’s 50 less paedophiles in this world, because, you know, these homosexuals are a bunch of disgusting perverts and paedophiles.”
Perhaps the most shocking thing Anderson said was: “I don’t condone violence, but gays should be executed.”
It is difficult to understand how a purported Christian in the modern age can propagate such hatred when the teachings of Christ clearly emphasise the centrality of loving your neighbour as you love yourself.
Anderson was prohibited from entering South Africa by the Minister of Home Affairs, using powers under the Immigration Act that prohibit the admission of foreigners likely to promote hate speech. His stay in Botswana did not last long as he was deported from that country for similar utterances.
Anderson ‘s calls surely cannot be allowed. Too many gays and lesbians in South Africa have been murdered simply for being who they are - gay or lesbian.
Our constitution guarantees freedom of religion and freedom of speech. But these rights often need to be balanced against each other and this can result in their limitation. My right to freedom of religion sometimes needs to be balanced against somebody else’s right to dignity or their right to life.
There is much intolerance and prejudice in our country - not only on the basis of race and gender, but also sexual orientation and religion. For example, only two weeks ago a pig’s snout and blood were placed outside the door of the Simon’s Town Mosque. An imam lodged a case of crimen injuria with
the police and said it showed disregard to and lack of respect
for the Muslim community.
We want to ensure the bill does not constrain the preaching of the Gospel or constrain the quoting of certain biblical verses, or the texts of any other religion as long they do not cross the line and become hate speech. If a person, like Anderson, says all gay people must be killed and uses a Bible verse to motivate this, it will be hate speech.
Many will argue and say the book of Leviticus (in 18:22 and 20:13) states men who have sex with men should be put to death. No one can stop that verse from being quoted in a sermon, but that verse cannot be used to advocate harm or incite violence towards gay men.
Speaking of Leviticus, the same chapter states children who curse their parents should be put to death, as well as people who commit adultery. Nobody uses these verses to advocate death or harm to such people, but somehow Leviticus is always used selectively in relation to gays.
Our Constitutional Court had the following to say about the relationship between religious rights and other rights: In Christian Education versus Minister of Education, the issue was about the prohibition of corporal punishment in schools. The court found it was important to balance rights and held: “There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the constitution is important.
“Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.”
But they specified: “The constitution ensures that the concept of rights of members
of communities that associate
on the basis of language, culture and religion, cannot be used to shield practices which offend the Bill of Rights.”
We value the views of our religious institutions and religious leaders and will look closely at the hate speech provisions in the draft bill to ensure religious leaders are able to preach their views freely, even though others may find these views questionable. However, such sermons cannot include any incitement to violence and harm.
Once the period for comment on the bill closes at the end of the month, the bill will be revised and again tabled before the cabinet for approval for introduction into Parliament. Parliament will also publish the bill for comment and conduct public hearings for those with views on the bill to make further submissions.
Jeffery is the deputy minister of justice and constitutional development.