In a historic development, South Africa’s Parliament has passed the amended version of the Hate Crimes and Hate Speech Bill. It will now go to President Cyril Ramaphosa for his signature.
The bill was first adopted by the National Assembly in March after which it was sent to the National Council of Provinces (NCOP) which proposed several amendments. On Tuesday, the majority of MPs supported the amended legislation.
The Prevention and Combating of Hate Crimes and Hate Speech Bill, which creates the jailable criminal offences of hate crimes and hate speech, was opposed by the DA, the FF+ and the ACDP.
The NCOP amendments were largely technical but significant changes included reducing the maximum prison sentence that can be imposed from eight to five years.
While the legislation is seen as a much-needed measure to tackle hate crimes by many LGBTIQ+ and other human rights groups, the hate speech provisions have proved to be controversial.
Concerns about freedom of expression
The DA argued that the Hate Crimes and Hate Speech Bill is irrational and does not pass constitutional muster in that it would limit freedom of speech. The party believes that the existing Promotion of Equality and Prevention of Unfair Discrimination Act already deals with hate speech.
The ACDP said it generally supported the hate crime aspects of the bill but also expressed its opposition to the hate speech provisions, asserting that these violate the right to freedom of religion and would have a chilling effect on freedom of expression.
The ANC, which backed the bill along with the EFF and IFP, stated that the bill will send a strong message that hate and prejudice are unacceptable in our society.
Criminalising prejudice and hatred
If it is signed by President Ramaphosa, the bill will recognise a hate crime as one motivated by the perpetrator’s prejudice or intolerance towards the victim based on their actual or perceived protected characteristics.
These characteristics include a person’s sexual orientation, gender identity or expression or sex characteristics, in addition to numerous others such as age, disability, race, and religion.
The bill will also make hate speech a criminal offence. This is defined as any form of communication and distribution thereof (including on social media) that has a clear intention to be harmful or incite harm, or promote or propagate hatred.
There are several exclusions such as artistic creativity, performance or expression; academic or scientific inquiry; journalism in the public interest; and religious convictions or beliefs (except where there is incitement to cause harm).
Earlier in the day, Deputy President Paul Mashatile told the NCOP, that “the finalisation of this bill will mark a significant step towards the protection of all South Africans against hate crimes and hate speech, particularly those based on race, ethnicity, gender and sexual orientation.”