Legislation: Hate Speech Bill ‘considerably’ different from 2016 draft

The revised Prevention and Combating of Hate Crimes and Hate Speech Bill approved last week by Cabinet for tabling in Parliament differs ‘considerably’ from a draft released in October 2016 for comment observes Pam Saxby for Legalbrief Policy Watch. This is according to a Department of Justice and Constitutional Development media statement among other things noting ‘significant’ changes to provisions in the Bill dealing with hate speech. ‘Most’ concerns raised in that regard have apparently been addressed. While the Bill has yet to be published, it now provides that there should be ‘a clear intention to be harmful or to incite harm or promote or propagate hatred’ for any form of public utterance to qualify as hate speech.

In keeping with section 16 of the Constitution (freedom of expression), the revised Bill specifically excludes from the ambit of hate speech anything done in good faith as part of bona fide: 'artistic creativity’ in the form of a performance or similar mode of expression; academic or scientific inquiry; and ‘fair and accurate reporting or commentary in the public interest’. This is on the understanding that the activity or publication concerned should not ‘advocate hatred that constitutes an incitement to cause harm’. The same applies to ‘the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings’.

The ‘circumspection’ with which the department dealt with each aspect of the ‘sensitive and contentious’ issues addressed in the proposed new statute is illustrated in the socio-economic impact assessment conducted prior to its submission to Cabinet. According to the statement, this is ‘a public document … available for scrutiny’. The Bill focuses on hate crime and hate speech based on ‘age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, or sex, which includes intersex or sexual orientation’.