Why is the DA so opposed to the Hate Crimes Bill?

A dispute between the DA and the deputy minister of justice has highlighted the party’s opposition to the long-awaited Hate Crimes and Hate Speech Bill. It’s a stance that some might say contradicts the DA’s claim to be an LGBTIQ+ ally.

Earlier this month, Advocate Glynnis Breytenbach, the DA’s Shadow Minister of Justice and Correctional Services, lashed out at Deputy Minister of Justice John Jeffery for comments he made in connection to the contentious Bill.

In a statement, Breytenbach claimed that Jeffery had asserted “that white Afrikaners were the biggest perpetrators of hate crime and hate speech in South Africa” in a reply to a question by the Freedom Front Plus.

Describing the Bill as “ill-conceived [and] draconian”, Breytenbach also went on to list the party’s reasons as to why it “will continue to oppose it in Parliament”.

These include the DA’s belief that hate should be an aggravating circumstance in sentencing rather than becoming an entirely new form of crime; that the Bill will not address the root causes of crimes motivated by hate, only the symptoms; and that it could be used as a political tool.

The DA also argues that the Hate Crimes Bill’s hate speech provision could lead to individuals and the media being forced to self-censor which “will result in a substantially chilling effect on freedom of expression across society”.

The party further fears the Bill’s requirements “will place a heavy burden on an already under-resourced NPA [National Prosecuting Authority], and amounts, in effect, to double legislating.” Finally, the DA stated that “the list of characteristics and grounds upon which a hate crime or hate speech may be committed is overly broad and lacks evidentiary justification.”

In April 2021, 33 LGBTIQ+ and human rights groups called for the urgent passage of the Hate Crimes Bill.

In response to the DA’s statement, Chrispin Phiri, spokesperson for the Ministry of Justice and Correctional Services, insisted that the DA had misunderstood Jeffery’s comments.

Phiri also claimed that the DA wants to “exclude ‘sexual orientation’ from the list of protected characteristics and grounds in the Bill, thus making members of the LGBTIQ+ more vulnerable to hate crimes and hate speech”.

The Prevention and Combating of Hate Crimes and Hate Speech Bill was first introduced in Parliament in 2018 and continues to wind its way through the legislative process. Last year, the public and organisations were asked to provide their comments on the draft legislation.

If passed, the Bill would create the criminal offence of hate crimes to improve the documentation, reporting and prosecution of these kinds of crimes. Hate speech would also be made a criminal offence, with some exceptions such as artistic and “bona fide” religious expression.

The Bill has the backing of most of South Africa’s LGBTIQ+ civil society as an important tool in addressing the ongoing discrimination and sometimes deadly violence against queer South Africans. In April 2021, 33 LGBTIQ+ and human rights groups called for the legislation’s “urgent” passage.

On the face of it, the DA’s position on the Hate Crimes Bill appears to contrast with its vocal expression of support for the rights and equality of the LGBTIQ+ community.

Mamba sent Breytenbach several questions for clarity on the issue.

In her response, Breytenbach failed to offer much substance when it comes addressing “the root causes” of hate crimes and hate speech, falling back to prosecuting offenders as a solution (something she criticised about the Bill).

Notably, she also wrote that while the party has no issue with sexual orientation being included as one of the grounds on which a crime could be defined as a hate crime, it is concerned about the inclusion of “gender identity or expression or sex characteristics” in the Bill.

The DA’s position on gender identity and expression is concerning.

She claimed there is no evidence to show that LGBTIQ+ people have faced systematic hate because of their “gender identity or expression or sex characteristics”. This is an assertion that many victims of LGBTIQ+ human rights violations and experts in the field would be surprised to hear. (Ironically, one of the hoped-for outcomes of the Hate Crimes and Hate Speech Bill would be better documentation of the nature and scale of these incidents).

“When one adds to this fairly recent development to allow for gender identity to be fluid, i.e. to change from time to time (and even within a very short space of time) it must be clear that no type of systemic hate towards those who subscribe to these freedoms around gender identity and gender expression can already be established,” stated Breytenbach.

She concluded by further putting the validity of trans identities in question. “Given that the demand to enjoy the freedom to express gender beyond historically accepted genders and to enjoy the type of fluidity described above is not even supported by all within the LGBTQ community, it is in our view not justifiable to treat the concept of ‘sexual orientation’ in the same manner as ‘gender identity or expression’,” wrote Breytenbach.

The DA’s position on gender identity and expression, as expressed in Breytenbach’s response, will be particularly alarming for the “TIQ” segments of the LGBTIQ+ community. It does, however, make the party’s generally liberal position on social issues more palatable to its conservative supporters amidst the increasingly polarising global gender culture war in which trans identities are disputed and invalidated.

Our questions to Breytenbach and her answers are published in full below.

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Mamba: How does the DA’s rejection of the Bill, which is seen as desperately needed by the LGBTIQ+ community and much of civil society, tie in with its stated support for LGBTIQ+ equality and rights?

We do not agree that the criminalisation of hate speech is “desperately needed” in South Africa. We are of the view that the answer to problematic speech is ordinarily more speech, in other words, dialogue and engagement are most effective to ultimately change behaviour. The Constitutional Court, in the Qwelane judgement, also gave the well-considered guidance that only once all other measures to curb hate speech are conclusively shown to have been ineffective, should criminalisation be considered – as a matter of last resort. Our assessment is that as government is not even able to provide statistics on incidents of hate speech since the implementation of PEPUDA, it cannot be concluded that other, existing measures, to deal with incidents of hate speech are not having any positive effect. We hold the view that what this Bill seeks to do is to double legislate. Our Constitution already defines the boundaries of personal freedoms, and cloaks with illegality any encroachments on those boundaries. This Bill is seeking to take circumstances that would be either aggravating, or very seriously aggravating, and which would ordinarily be taken into account in argument from the prosecution on sentence, and turn them into an element or elements of a stand-alone crime. The underlying crime already exists. The proof thereof is already a challenge in many instances. State of mind is an extremely difficult thing to prove beyond reasonable doubt. We have argued that the burden of proof required for crimes envisaged by this Bill will be very onerous, more so than the existing, underlying offences, since they will largely depend on proving “state of mind”. Failure to prove the Hate Crime will not prevent a conviction on the underlying offence provided that sufficient evidence exists, but the failure to prove the Hate Crime will also result in the prosecution being hamstrung in argument in aggravation, since those circumstances will already have been judged unproven, and no submissions of such evidence will be admissible on sentence. The downside is, in our view, far greater than the upside

Mamba: Breytenbach said in her statement: “Instead, the Bill seeks merely to punish the symptoms rather than address the root causes of crimes motivated by hate.” Why is the DA opposed to punishing a crime? Does the DA propose that criminals not be punished and only the causes of crime are addressed?

This question cannot be posed with any seriousness. It is simply mischievous and a deliberate twisting of our view to suggest that the DA is opposed to punishing crime, any crime. We have a track record in this regard that speaks for itself and requires no defence in the face of such a facetious question. In as much as we have explained our approach in question 1 above, that should be taken into account here.

Mamba: What does the DA believe is the root cause of LGBTIQ+ hate speech and hate crimes?

The root causes of LGBTIQ+ hate speech and hate crimes are far too many to discuss in this type of document, and especially in the very limited time given for response. The answer to this question is both extensive and has its foundation in concepts of psychology, history, social norms other concepts that require an informed and serious approach, as does the analysis of any (indefensible) prejudices that have no place in a 21st-century constitutional democracy. I am not an expert on the topic, nor do I possess sufficient off-the-cuff information to do the question justice in this format without referring extensively to appropriate research. Suffice it to say that all such indefensible prejudices are roundly condemned and prohibited in our Constitution, as they should be.

Mamba: Hate speech and/or hate crime legislation in various forms has been enacted in Europe, Canada, the US (state-based and federal), Brazil and Australia, to mention a few. Is the DA opposed in principle to this kind of legislation or just this Bill? If the latter, how would the DA change the Bill to make it acceptable?

The DA, and other political parties, have been engaging on this Bill for some months now. We have articulated, repeatedly, our opposition (with reasons) to certain aspects of the Bill. All of these debates are available on the PMG [Parliamentary Monitoring Group] platform. It would certainly not be possible in the available time to repeat all the various points made by the DA in order to try and improve the Bill and make it a more reliable, efficient piece of legislation, despite our belief that it is not necessarily a good Bill. We have made many suggestions for improvement, some accepted, some not. That is the nature of crafting legislation.

Mamba: How does the DA propose that LGBTIQ+ hate speech and hate crimes be effectively addressed in South Africa, including addressing the root causes? What would the DA do if in power?

The Constitution gives the backbone of the necessary guidance in how to deal with these matters, and is buttressed and broadened by various judgements from the High Court and the Constitutional Court. These read in conjunction, each with the other, provide the necessary guidance on how our courts are expected to approach these types of matters, and what principles and social norms are at play in any given matter. We have PEPUDA [the Promotion of Equality and Prevention of Unfair Discrimination Act] which gives the appearance of being underutilised, our criminal law, both statutory and common law, as well as a body of civil law which may be appliable. Our reply in question 1 reveals our deep concerns with these issues. When in power, the DA would ensure speedy and effective prosecutions to protect the fundamental rights and freedoms of all South Africans, and those who live in her.

Mamba: Chrispin Phiri, the spokesperson for the Ministry of Justice, was quoted as saying. “It is important to highlight that the DA chose to exclude ‘sexual orientation’ from the list of protected characteristics and grounds in the Bill, thus making members of the LGBTIQ+ more vulnerable to hate crimes and hate speech.” Is this correct, and if so why has the DA singled out ‘sexual orientation?

Mr Phiri and the Minister of Justice are forlornly attempting to score cheap political points in a dishonest manner. The options provided to the Committee do not allow for “sexual orientation” on its own to be a criterion in terms of which hate speech could be criminalised. Instead, it is lumped together with “gender identity or expression or sex characteristics”. This means that the Minister is of the view that issues around “sexual orientation” are as settled as fairly recent developments which seek to allow for persons to express gender identity in manners beyond the universally accepted genders and identities. When one adds to this fairly recent development to allow for gender identity to be fluid, i.e. to change from time to time (and even within a very short space of time) it must be clear that no type of systemic hate towards those who subscribe to these freedoms around gender identity and gender expression can already be established. Given that the demand to enjoy the freedom to express gender beyond historically accepted genders and to enjoy the type of fluidity described above is not even supported by all within the LGBTQ community, it is in our view not justifiable to treat the concept of “sexual orientation” in the same manner as “gender identity or expression”.