Racism and hate speech remains a thorny issue in South Africa and has become a matter of public discourse in light of a number of high profile cases of racism. But a recently tabled bill directed toward combatting hate speech has surprisingly garnered widespread concern, particularly within religious fraternities. The Department of Justice and Constitutional Development in 2016 opened for public participation the discussion of Prevention and Combating of Hate Crimes and Hate Speech Bill, but religious leaders and members of the public have voiced their concern that the bill’s interpretation of hate speech, contained within the text of the document, inadvertently criminalizes parts of religious texts.

What is the hate speech bill?
While a bill is not enforceable until it has been passed as a piece of legislation, the current bill titled “Prevention and Combating of Hate Crimes and Hate Speech Bill” has been tabled for public participation. Drawing on of Section 16 (2c), the Constitution of South Africa objectively refers to an advocacy of hatred that constitutes incitement to cause harm. The bill in question, however, extends the definition of hate speech to subjectively include speech that is insulting.

The Department of Justice and Constitutional Development invited comment from members of the public, which ended on the January 31, 2017, the bill is subsequently heading to Parliament, after which more public participation will take place.

What does the public say?
In a discussion on VOC’s Burning Issue show this week, imam, attorney, and exco member of the Muslim Judicial Council (MJC) Shaykh Muneer Abduroaf unpacked the ulema body’s submission of comments on the bill.

Abduroaf explains that while the bill to a large extent focuses on ‘hate speech’ – that just as the Constitution addresses its eradication towards improved social relations, the constitution however also allows for freedom of religion.

With regards to the concept of freedom of religion, as outlined in the Constitution, the Shaykh notes that the constitution allows for both, the freedom of practice and conveying of one’s faith, further providing for the freedom of expression.

He therefore asserts that the main problem that religious leaders have found with regards to the contents of the bill relates to the interpretation and the definition of the concept of ‘hate speech’ as outlined by the bill.

Founder and CEO of the Family Policy Institute, Errol Naidoo, echoing Shaykh Abduroaf’s sentiments, and explained that upon reading the bill, his first impressions was that it is a “a badly worded bill” and that it has far reaching implications for the freedom of speech, expression and religion.

“The reason why I believe this bill is dangerous is because of the very broad definitions of what constitutes hate speech. There are a number of categories listed of protected people groups, but the definitions are so broad that it would have a chilling effect on freedom of speech, expression, and religion.”

Limits to religious freedom
If the bill is to be passed, he says that the consequence of the vague language and interpretation of the bill will result in the courts being inundated with individuals charging anyone with hate crimes.

“Governments intention is to combat hate speech against people on race, gender etcetera, but in practice it is going to be a huge problem – I think for religious people it’s going to be a huge challenge…it could criminalise parts of the bible,” Naidoo stated.

Citing the recent Penny Sparrow debacle in which Sparrow referred to non-white beach goers as “monkeys”; Naidoo states that there is adequate legislation that deals with hate speech.  The bill has been tabled as a means to extend the current legislation to include utterances on homosexuality that have reportedly given rise to an increase in hate crimes against the queer community.

“[Homosexuals] have said that people who preach that [homosexuality is a sin] have blood on their hands and that attacks on homosexuals, for example the raping of lesbians, is a result of the church preaching that homosexuality is a sin from the bible,” said Naidoo.

Essentially, a charge can be laid against a religious leader who preached the message of homosexuality being sin as prescribed by respective religious texts.

Naidoo is calling for Parliament to scrap the bill and urges all “religious people” to oppose the bill.
Commenting on the mechanisms through which members of the public can deal with the possibility of the bill being passed as legislation, Shaykh Abduraouf urges everyone to table comments as part of the public participation process.
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The more comments they have, let’s say we think that the definition of hate speech is too broad, then it has to be said to the right people, then we send petitions and comments to the Department of Justice and Constitutional Development, Mr T Ross, informing him that we disagree with this.”

While every right has a limitation, Shaykh Abduroaf and Naidoo both agree that the passing of the bill with its broad definition will have a tremendous impact on religious institutions as it may stifle religious freedom to propagate the teachings of one’s faith, and may in effect require the training of religious leaders on what may constitute ‘criminal sentiments’.

“I might say according to my religion, it is wrong to have extramarital affairs and, therefore, something like that is prohibited within Islam. It might be that someone is offended and say that ‘I feel that this is hate speech and I am going to charge you and you can face the consequences for your criminal conduct’,” added Shaykh Abduroaf. VOC