152 Final Country Report

Final Country Report

In my final country report, I will be exploring the concerns of free speech and hate speech in South Africa, and contested legislation about hate crimes that have been introduced in the South African parliament.

South Africa:

The Dichotomy between Freedom of Speech and Protection from Hate Speech

South Africa’s Constitution prohibits hate speech, so why have there been three different laws preventing hate speech been brought to Parliament in the past few years? South Africa has faced hate speech issues for years. Even 28 years after the end of apartheid in 1994, racism is still prominent as a legacy left by the segregation enforced by the National Party during much of the twentieth century. Hate speech has been a growing frustration for many South Africans across the country as examples of many getting away with verbal attacks on different groups within South Africa have increased in past years. Freedom of speech and the right to freedom from harassment are equally important issues, and South Africa is currently battling with finding a balance between the two. As South Africa looks to the future for a solution, it is important to look at the past and events that have led to the current situation in order to inform future decisions.

Race and ethnicity have long stood at the heart of South African history and politics, shaping the country in a unique way since the European colonization in the late 18th century. The British fought for control of the Cape of Good Hope, a southern point of the Cape Peninsula, in order to better control the movement at the southern tip of Africa to thwart French invasion (South African History Online, n.d.). The British perpetuated racial segregation throughout the colonial period from 1795 until South Africa ultimately became independent from colonial rule in 1910 (South African History Online, n.d.). The British consolidated power within a small group of white elites, ultimately entrenching the country in a deep division of socially-constructed ideas of race which have lasted well into the twenty-first century.

The Segregation Era grew out of the legacy left by British Imperialism and led to a period of segregation and division from 1910 to 1948 until the start of Apartheid in South Africa. The Union of South Africa was established in 1910 as a self-governing land under the British Empire, much like Canada or Australia (). The Union system had racial segregation ingrained in all facets, with the legal structure full of laws like the Natives Land Act that was passed in 1913 that divided the land of South Africa and limited black Africans from owning only seven percent of the land, whereas white ownership could consist of 87 percent of the land (South African Government, 2022). The Natives Land Act and many other laws passed during the Segregation Era in South Africa laid the groundwork for many challenges the country faces today.

The Segregation Era came to an end when the National Party came to power in 1948 and marked the start of Apartheid. Apartheid, a term meaning “apartness” in Afrikaans, was a system of legislation promoted by the government at the time that institutionalized racial segregation in South Africa. The rise of apartheid in South Africa removed all legal protections that had existed prior to 1948 and blocked all legal protests of segregation and legal racism in the country (Office of the Historian, 2022). Apartheid sought to divide white and black people living in South Africa and utilized segregation to use black bodies as cheap labor to fuel capitalism ().

Apartheid eventually came to an end in 1994 after years of brutality and protests. The end of apartheid saw the creation of the new South African government that exists today, including the writing of the new Constitution that rules the country today. The South African Constitution was adopted in 1996 and went into effect in 1997, and has a clause about the freedom of speech and hate speech exclusions. Section 16 of the Bill of Rights states:

“1. Everyone has the right to freedom of expression, which includes ­

• freedom of the press and other media;
• freedom to receive or impart information or ideas;
• freedom of artistic creativity; and
• academic freedom and freedom of scientific research.

2. The right in subsection (1) does not extend to ­
   • propaganda for war;
   • incitement of imminent violence
   • advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

This section of the Bill of Rights provides freedom of speech to South Africans but states which forms of speech are excluded from protection, namely speech that incites imminent violence or advocates hate based on race, gender, or religion (South African Government, n.d.). While South Africa officially prohibits hate speech and hate crimes, there are still many modern examples of severe hate speech and hate crimes in recent years, highlighting the continued issues around hate in South Africa.

In response to a rise in hate speech and violent hate crimes, the South African Parliament introduced the Prevention and Combating of Hate Crimes and Hate Speech Bill in October of 2016 (Igual, 2020). Once the bill is made law, judges would be allowed to consider issues of prejudice or bias in relation to race, religion, gender, sexual orientation, and more as an aggrivating factor in cases ​​(Igual, 2020). However, due to freedom of speech and hate speech being a highly contested issue, the bill has stalled over the years due to large concerns about the viability of the bill. The South African government opened up the first draft to written comments from institutions, organizations, and individuals from across the country and around the world, and 75, 854 comments were received in response to the first draft (Igual, 2020). Based on these comments, a new draft of the bill was approved in March of 2018. However, the bill is still higihly contested and has yet to pass as of 2022 despite multiple revisions and attempts to pass the law.

The introduction of legislation around combating hate crimes and hate speech made a splash in South African culture and two strong opposing arguments formed; the argument for more legislation against hate speech and the argument that a large legislation like this bill will stall positive change around prosecution of hate speech and crimes in South Africa. The prominent argument for the passage of this legislation comes from the Hate Crimes Working Group (HCWG) is a working group of organizations spearheading reform around hate crimes in South Africa through policy and legislation (Hate Crimes Working Group, 2019). Primarily in opposition is For SA, a nonprofit advocacy group working to protect religious freedoms and ensure these freedoms are upheld in South Africa according to the South African Constitution (For SA, 2022). Both groups are working to prevent harmful hate speech and hate crimes, however each group takes a different approach and therefore are on opposite sides of the debate around the Prevention and Combating of Hate Crimes and Hate Speech Bill.

On one side is the Hate Crimes Working Group (HCWG). The organization has been advocating for more comprehensive legislation around hate speech since 2009 and is a strong supporter of the Prevention and Combating of Hate Crimes and Hate Speech Bill ((Hate Crimes Working Group, 2022). The organization believes that the bill will primarily set precedent in Sotuh Africa that hate speech and hate crimes are unacceptable and not tolerated, as well as aiding in continued prosecution in hate speech and hate crime cases (Hate Crimes Working Group, 2022). However, the HCWG has serious concerns about the current state of the legislation. The organization believes that the bill will actually have a negative effect on combatting hate speech by slowing down the legislative process and siphoning attention from prosecuting current cases and combatting hate speech through other pathways (Hate Crimes Working Group, 2022). In addition, the organization is concerned about the financial implications of the legislation and future implementation of the bill. The South African Department of Justice and Correctional Services believes that the legislation can be implemented with no additional funding, which the HCWG believes is entirely false and very concerning (Hate Crimes Working Group, 2022). While the organization is a supporter and hopeful that the new legislation could be successful, there are multiple sections of the bill that concern the HCWG.

For SA is mostly in opposition to the bill as the organization believes that the bill in its current state threatens free speech and therefore threatens religious freedom and practice in South Africa, as the organization focuses on protecting religious freedoms in the country (For SA, 2022). However, with changes, For SA also believes that the legislation could allow for a more narrow definition of hate crimes and what constitutes hate speech, therefore making prosecution more simple and quick. In addition, For SA also believes that the legislation could allow for further protection from hate crimes while also protecting free speech in South Africa by narrowly defining hate speech, particularly in terms of religion as For SA is a religion-oriented organization (Ellerbeck, 2020). The organization believes that as it currently stands, the definition still remains too broad, meaning that speech currently protected could be considered hate speech. In addition, the organization also notes that the proposed criminalization of hate speech is unnecessary given that the South African Constitution and other legislation already prohibits and criminalizes hate speech (Ellerbeck, 2021). Despite these concerns, For SA believes that the changes made over the last five years since the bill’s introduction show positive change and believes with continued edits, the bill can be a helpful tool in combatting hate speech (Ellerbeck, 2021).

Ultimately, both organizations aim to better the legislation around hate speech and hate crimes in South Africa through different avenues. Hate crimes are such a prominent issue in South Africa and organizations across the country are advocating for reform in the legislation to combat hate crimes. While the Prevention and Combating of Hate Crimes and Hate Speech Bill has stalled multiple times over the last five years, the South African government and advocacy organizations like the Hate Crimes Working Group are working diligently to finalize the bill to create further legislation combatting hate speech.

Sources:

Ellerbeck, D. (2020, November 11). UN’s definition of “hate speech” is a serious threat to free

speech. FOR SA.

https://forsa.org.za/uns-definition-of-hate-speech-is-a-serious-threat-to-free-speech/

Ellerbeck, D. (2021, March 4). Revised Hate Speech Bill an improvement, but still concerning.

FOR SA.

https://forsa.org.za/revised-hate-speech-bill-an-improvement-but-still-concerning/

For SA. (2022, April 6). Vision & Mission. https://forsa.org.za/about-us/vision-mission/

Hate Crimes Working Group. (2019, February 10). About Us. http://hcwg.org.za/about/

Hate Crimes Working Group. (2022, March 29). HCWG addresses Parliament on long-awaited

hate crimes law.

http://hcwg.org.za/media-statement-hcwg-addresses-parliament-on-long-awaited-hate-cri

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Igual, R. (2020, August 17). So what’s the status of South Africa’s Hate Crimes Bill?

MambaOnline. https://www.mambaonline.com/2018/07/17/so-whats-the-status-of-south-africas-hate-crimes-bill/

Mahr, K. (2019, March 28). A South African law would make hate speech punishable by jail

time. Los Angeles Times.

https://www.latimes.com/world/la-fg-south-africa-hate-speech-20190328-story.html

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