by Scott Morgan
There is a piece of legislation in the South African Parliament that is creating some controversy as it is revealed to the population of the country.
The item that is in question is Bill B9-2018 or the Prevention and Combating of Hate Crimes and Hate Speech Bill was first published on March 29, 2018 and has been debated in Parliament ever since. The hearings that were held regarding this proposed bill in 2022 were documented by the US State Department in the annual report on International Religious Freedom that was released earlier this year.
Why is this proposed legislation problematic? It appears that the concerns come from how a sub-clause will be interpreted. Before that is revealed how does the proposed legislation define what is a hate crime? According to the Legislation a hate crime is defined as “an offense recognised under any law, the commission of which by a person is motivated by that person’s prejudice or intolerance towards the victim of the crime in question because of one or more of the following characteristics or perceived characteristics of the victim or his or her family member or the victim’s association with, or support for, a group of persons who share specific characteristics”. These include race, religion HIV status..etc
The proposed definition of hate speech is: Any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to— (i) be harmful or to incite harm; or (ii) promote or propagate hatred, based on similar criteria that is defined for a hate crime.
Michael Swain, the Executive Director of Freedom of Religion South Africa (FORSA) an organization that defends faith based communities against Government overreach, has been tracking the legislation. In 2022 he addressed a meeting of faith leaders meeting in Pretoria informing them that “this is the time to defend their faith like never before.” What would cause him to make such a statement?
Going back to the legislation appears to be where the answer is located. Buried in the legislation is the following paragraph: “the bona fide interpretation and proselytizing or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a)” Basically this means that preaching from the Holy Bible can be considered hate speech if it leads to some form of criminal action.
How the prosecutions under the proposed bill are launched could potentially be problematic. According to language within the bill “ Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions having jurisdiction or a person delegated thereto by him or her.” This could lead to some prosecutions that are politically motivated against a vocal critic of government policy.
How credible are the concerns that are being raised? The Honorable Rollin A. Van Broekhoven
A retired US Federal Court Judge who also is a law professor in China teaching Jurisprudence, Constitutional Law, Human Rights and Religious Freedom was asked to testify in front of the South African Parliament on September 20th regarding what he thought of the Bill.
Some of the concerns that Mr. Van Broekhoven raised include :
A maximum eight year prison sentence even for a first time offender that is convicted under this bill. There will be no civil sanctions to be levied if this bill enters into force.
The punishment of a criminal sentence instead of a civil penalty can be levied for “hurt feelings” or emotional harm
The language of the bill can be read so widely that it would represent a failure of South Africa’s obligations under international law regarding both Freedom of Religion and Freedom of Expression.
The news is not all negative regarding this. Seeing the Church organizing meetings and raising awareness over this bill is a positive notion. Much too often Christians focus on other issues that present a daily challenge to their livelihoods rather than potential threats such as this proposed bill. The fact of knowing that there are meetings designed to both raise awareness and to discuss how to address these concerns should not go unnoticed either.
So the onus falls upon the Parliament to resolve any concerns specifically regarding language and enforcement before this bill is voted on. Until then we have to monitor the situation closely.