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'Overly broad' hate speech law ruled unconstitutional

Publish date: 02 December 2019
Issue Number: 852
Diary: IBA Legalbrief Africa
Category: South Africa

Controversial former diplomat and ‘gay is not OK’ columnist Jon Qwelane scored a victory in the SCA last week when the court dismissed a finding that he was guilty of hate speech and ordered Parliament to rewrite the ‘vague’ and ‘overbroad’ law meant to protect against discrimination. In the column, Qwelane lauded former Zimbabwean President Robert Mugabe's ‘unflinching and unapologetic stance’ on homosexuality. In essence, notes a Sunday Times report, the court ruled that while the intentions of the law are noble, it oversteps the mark in curbing free speech. The court held that an opinion like Qwelane's may be hurtful without being hate speech, and thus he is protected by his right to express a view. Qwelane described the ruling as ‘the greatest thing to happen to free speech in the country's history’, but gender activists said they were disappointed. Qwelane, a former high commissioner to Uganda, was criticised after he wrote a newspaper column in 2008 in which he urged politicians to rewrite the Constitution to outlaw same-sex marriages, suggesting that acceptance of gay marriage will ultimately lead to demands to ‘marry an animal’.

MPs now have 18 months to rework provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda). ‘It is clear that the legislature wanted to regulate hate speech as broadly as possible. Unfortunately, it did not do so with the necessary precision and within constitutional bounds,’ the court found. The hate speech provisions of the Act were declared invalid. While the provisions of hate speech laws are reconsidered, the court rejigged sections of the law to ensure vulnerable groups are protected in the interim, notes the Sunday Times. A key pillar of the court's ruling is that the test for hate speech needs to be objective, and that incitement to cause harm needs to be proved. The ruling cannot be retrospectively applied, so those who have already fallen foul of hate speech laws are without recourse. The ruling has been referred to the Constitutional Court for confirmation. The SCA found the hate speech provisions were badly worded, overly broad and used a subjective test, thus clashing with the right to freedom of expression. The relevant section of the Act states: ‘No one may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred.’

Qwelane v SAHRC & Others

Full Sunday Times report (subscription needed)