DA leader Mmusi Maimane File picture: Boxer Ngwenya/Independent Media
Cape Town – The African National Congress's draft Prevention and Combating of Hate Crimes and Hate Speech Bill, commonly referred to as the "hate crimes bill”, draws the line in the wrong place, says Democratic Alliance leader Mmusi Maimane.

"South Africa’s 1994 'miracle' ended centuries of legislated racial discrimination. But the heads and hearts of South Africans were not miraculously wiped clean in that seminal moment," Maimane said in his weekly Bokamoso newsletter.

"The racism constructed during those centuries and passed down through them is still very much a part of our society today, along with the racist acts and speech it provokes. The question we must now debate as a nation is: how do we navigate our way towards the non-racial society envisaged by our Constitution?

"Unquestionably, we must deal with the structural conditions that allow race-based inequality to persist – unequal access to education, earning, and ownership opportunities. The progress we make on this long-term project will steadily chip away at the racism that is so entrenched in our society. But we cannot just wait for hate-fueled incidents to slowly diminish over time while we claw our way to a more just society. Through effective legislation we can decisively prevent and combat harmful acts and speech fueled by racial and other forms of discrimination," he said.

Almost all South Africans agreed that in the interest of social solidarity, human dignity and nation building, a line had to be drawn between freedom of expression and hate speech. The ANC’s Prevention and Combating of Hate Crimes and Hate Speech Bill currently making its way through Parliament supposedly endeavoured to do just that but drew the line in the wrong place. In its purported attempt to deter racism and other forms of discrimination it overstepped the mark, venturing – whether by mistake or design – into the dangerous and unconstitutional realm of censorship and authoritarianism. The DA had produced an amendment bill which sought to strengthen existing legislation to “give it teeth”.

It would be tabled in Parliament within the next month and then released for public comment and consideration. It was a practical and constitutional piece of legislation the DA believed would be effective in tackling all forms of hate speech in South Africa. Critically, it achieved an appropriate balance between promoting freedom of expression and deterring hate speech. Freedom of expression was a cornerstone of open, democratic societies. Its suppression through censorship was one of the apartheid government’s most powerful tools. The free and open exchange of ideas was a right enshrined in section 16 of the Constitution, offering protection against any government that would put the narrow interests of a powerful elite over the national interest, Maimane said. However, hate speech undermined the right to dignity enshrined in section 10 of the Constitution.

"Our country comes from a place of division and inequality based on race and it is our duty as South Africans to rid our country of racial discrimination and intolerance. Moreover South Africa, as laid out in our Constitution, aspires to an exceptionally high standard of social equality. Aversion to discrimination based not only on race but also on differences such as sex, gender, language, culture, and disability must be set as our norm.

"Neither the right to free speech nor the right to dignity was protected or upheld before 1994. It is therefore crucial that we find a reasonable and workable balance between these two fundamental but sometimes contradictory claims. This is why section 16 of our Constitution specifically excludes 'advocacy of hatred that is based on race, ethnicity, gender or religion, and constitutes incitement to cause harm'. And it is why section 36 of our Constitution provides for a limitation of our rights within reason."

On these grounds, legislation already existed to combat hate speech, both in common law (through crimen injuria) and in the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) – also known as the “equality act”. But there was no doubt that more needed to be done to curb hate speech in South Africa.

"However, the ANC’s proposed hate crimes bill is not the answer – it fails to pass the test of good law in an open, democratic society. For one thing, a large portion of it is already covered by this existing legislation and is therefore unnecessary. For another, the portion that is not redundant over corrects. It goes well beyond the limitation of rights in the Constitution and will likely be struck down by a court of law.

"One source of this overreach is its classification of speech as a crime if it is 'hateful, insulting, threatening or abusive and incites harm, violence, contempt, or ridicule on the basis of race, gender, sex, sexual orientation, intersex, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism, or occupation or trade'," he said.

By criminalising hate speech that provoked “contempt or ridicule” it reached well beyond constitutional limitations and international best practice, placing ordinary free speech – especially by comedians, cartoonists, opposition politicians, religious leaders, and people with a wicked sense of humour – in dangerous territory where it did not belong. It would likely lead to a proliferation of frivolous cases, placing unnecessary pressure on the already over-burdened judicial system. The inclusion of “occupation or trade” was especially bizarre and, like many other aspects of the bill, was fraught with potential unintended consequences.

"But it goes even further, making the distribution – including electronically – of another person’s hate speech a crime, regardless of whether or not it constitutes an endorsement; and making an offence of 'attempted' free speech, criminalising even our thoughts. George Orwell would be having a field day.

"These are not distinctions which should be taken lightly by South Africans. The punishment for such hate speech is three to 10 years imprisonment. This is arguably unconstitutional because the same end – to deter and combat hate speech – can be achieved in far less restrictive ways."

The DA’s bill strengthened the current legislation and the Equality Court. Importantly, it broadened the definition of hate speech and incitement to genocide and provided for more commensurate punishment. It passed the test of good law and was consistent with the Constitution and international best practice. And it set a high standard for acceptable social norms, one which would move South Africa forward in the pursuit of a free and fair society, Maimane said.