RJ and Hate Speech

The draft Prevention and Combating of Hate Crimes and Hate Speech Bill was published for public comment on 24 October 2016. The Bill seeks to give effect to the State’s obligations in terms of the Constitution and international conventions to make racial superiority or hatred punishable by law. In his public comments about the Bill Justice Minister Michael Masutha stated that ‘developing specific legislation on hate crimes will have a number of advantages. It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and provide a means to monitor efforts and trends in addressing hate crimes.’

The Bill makes provision for the prosecution of both hate crimes and hate speech. It goes far beyond racism, defining victims of bias or intolerance based on: race, gender, sex (which includes intersex), ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism, occupation or trade.

In introducing this Bill, South Africa is joining an international trend in which multiple jurisdictions are criminalizing both hate crime and hate speech to protect a range of different victim groups. Central to the vast majority of these laws is the provision for increased punishment ‘for any offender who “demonstrates” or who is (partly) motivated by, hostility towards a victim based on the victim’s actual or presumed identity traits’ . The rationale for this increased punishment arises from the retributive principle of proportionality on the view that a hate offender’s intention/purpose carries a higher degree of moral blameworthiness, while simultaneously recognizing the enhanced level of harm that such crimes cause to victims, communities and society more broadly.

The Bill provides limited guidelines for sentencing, referring to relevant aspects of the Criminal Procedure Act and where those provisions are not relevant hate crimes should be regarded as aggravating circumstances. The Bill recommends hate speech, in the case of a first offence, lead to a fine or imprisonment for a period not exceeding three years, or to both a fine and prison. Apart from this, the Bill thus does not provide any new mechanisms for responding to hate crime or speech.

While there are good reasons for hate crimes legislation, ‘there are two fundamental criticisms of this approach that should be noted:

1. The enhancement of punishment and additional criminalization of hate-motivated perpetrators does little to repair the harms caused by incidents of hate(emphasis in original)

2. Enhancing the penalties of offenders is unlikely to effectively challenge the underlying causes of prejudice, at least at an individual level. ’

The Bill does not appear to have taken these criticisms into account at all. This despite recent research conducted in the UK that showed strong evidence of improving the emotional well-being of victims as well as ending situations of hate crime.
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