The Prevention and Combatting of Hate Crimes and Hate Speech Bill (let’s call it the Hate Bill) is currently before Cabinet, and once approved, will be tabled in Parliament. It is an extremely dangerous piece of legislation, however. Originally intended to deal with hate crimes, which is a perfectly legitimate objective, the bill has been ten years in the making. Recently, however, a knee-jerk reaction to a few hate speech incidents has seen the hasty addition of provisions on hate speech.

The Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) already prohibits and criminalises hate speech. The Hate Bill goes much further, however, criminalising even petty insults and hand gestures, and imposing lengthy jail terms even on first offenders.

The new bill extends the grounds for hate speech to race, gender, sex (including intersex), ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism, and occupation or trade.

The Constitution, in section 16 of the Bill of Rights, states that freedom of expression “does not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

Limiting hate speech to only a few prohibited grounds, and then only to speech that incites harm, is entirely reasonable. A hardcore believer in individual liberty would say that only acting on that incitement ought to be a crime, but given the consequences of whipping up a mob, it isn’t unreasonable to prohibit incitement.

It stands to reason that any law that limits freedom of expression further than the extent permitted in the Constitution is, ipso facto, unconstitutional. Indeed, according to legal expert Kessler Perumalsamy, the Constitutional Court explicitly ruled in 2002 that no law may extend the definition of hate speech to grounds beyond those named in the Constitution.

This means that the Equality Act already contravenes the Constitution, by extending grounds for hate speech to race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or anything else that could perpetuate systemic disadvantage, undermine human dignity, or adversely affect the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on one of the listed grounds.

The Constitution says hate speech must amount to incitement to cause harm. The Equality Act goes much further, to speech that demonstrates an intention to be hurtful, be harmful or incite harm, and/or promote and propagate hatred.

This raises the question whether “be hurtful” extends to legitimate criticism. For example, religious people are routinely hurtful about what they call sinners. Conversely, I’m perfectly willing to be hurtful in my claims that religious people are deluded, are often hypocritical, and are sometimes actively evil. I’m also willing to say old people are terrible drivers, and teenagers are slobs. I can think of a number of expressions of culture that one might criticise, or even sneer at, without feeling the least guilty. Not all culture is good culture.

The new Hate Bill goes even further, to include advocating hatred, threatening another person or group, aiming to incite others to harm that group, stir up violence against them, and even to stir up contempt or ridicule against a person or group of persons.

The last bit is the problematic bit. This would in effect criminalise criticism, including by journalists, satirists, cartoonists, and civil society groups. Arguing that communists cause starvation, or capitalists are pigs, or a politician is a liar, or the EFF is fascist, or lawyers are sleazy, or a child is delinquent, or the DA is racist, or a worker is a drunk, or fossil fuel companies destroy the planet, or the ANC is corrupt, or immigrants steal jobs, or bankers are greedy, or men are abusive, or doctors are in the pocket of Big Pharma, or anti-vaxxers kill children, or nutritionists are clueless, or homeopaths are frauds, or bureaucrats are lazy, could all be prosecuted as hate speech.

“Typical plumber, always late,” would be hate speech.

“The best he could do was become a part-time cleaner,” would be hate speech.

Ironically, calling Penny Sparrow a small-time, unemployed estate agent and a contemptible racist could become prosecutable as hate speech. And unlike in defamation cases, truth is no defence.

The Hate Bill also explicitly criminalises not only public communication of hate speech, but also private messages, and even gestures and bodily expressions that could be interpreted as insulting. If you flip the bird at someone, you’re up on charges. If you recoil at the touch of a gay person, because they are gay, you’re guilty of hate speech. If you make an expression of disgust at a police officer, it’s off to jail you go.

And jail it will be. The Hate Bill imposes extraordinarily harsh penalties upon offenders. A first-time hate speech offender could get a fine, three years in prison, or both. A second-time offender could face ten years in prison. This is not punishment that fits the crime. This is brutal and draconian.

So, we will now have two separate laws, prosecutable in different courts, with different definitions of hate speech, and both being unconstitutional. In addition, we have the crime of crimen injuria, which covers unlawfully and intentionally impairing the dignity of another person. This is an inconsistent legislative mess.

Tacking a hate speech provision we do not need onto a hate crimes bill we do need makes it hard to oppose the bill without looking like you condone hate crime, hate speech, or both. Despite this, even the Hate Crimes Working Group, which was instrumental in the drafting of the original bill, has come out against it, saying: “We note that new proposed legislation entitled the Prevention of Hate Crimes and Hate Speech Bill specifically criminalises hate speech. While we celebrate the drafting of explicit legislation that recognises (sic) hate crimes, we are opposed to the criminalisation of hate speech in this Bill.”

For some reason, governments believe they can act against racism and discrimination by prohibiting speech. This is not true. If you suppress speech, you do not suppress the prejudiced thoughts that gave rise to it. You merely push them underground, where they can fester and spread undetected. And the more dangerous consequence of ever-broadening definitions of hate speech is that the law will end up being used against perfectly legitimate speech criticising people.

The very idea of freedom of expression is meaningless if it does not protect offensive speech. Nobody will ever object to inoffensive speech, so we don’t need laws to protect it. Unless we want to stifle robust public debate and criticism, offensive speech must be protected.

How we respond to that speech ought to be up to us, not the government. If the opinions expressed are indeed deplorable, we have options. We can engage with the speaker in order to change their minds. We can ostracise the speaker. We can subject them to public opprobrium. We can even destroy their careers (because who needs racist estate agents, anyway?). But throwing them in jail with rapists and murderers? That’s excessive.

The hate speech portion of the Hate Bill reveals a dangerously totalitarian mindset, believing that repressive laws can create the perfect society. It cannot. It is a cliché to invoke George Orwell, but his dystopia about an all-powerful surveillance state that polices speech and even thought is spot on.

The original purpose of the Hate Bill, to provide for hate crimes, is laudable. Assault, rape or murder committed out of hate for a person’s nationality, ethnicity, language or sexual orientation, is worse than ordinary assault. It should be prosecuted as such.

However, the addition of an ill-considered, over-broad and extraordinarily harsh hate speech clause, makes the Hate Bill fatally flawed. If we let incidents like Penny Sparrow’s racist outburst justify such broad, repressive and draconian legislation, we’ll end up with far bigger problems than racist speech.

The Hate Bill either needs to be amended to have the hate speech provisions removed, or it needs to be scrapped altogether. It is repressive law that critically endangers freedom and democracy. It may be a blessing that it is unconstitutional and holds the Constitutional Court in contempt. If passed, surely it cannot survive for long.

(Astonishingly, the Hate Bill does not appear on the Department of Justice website. The link that appears to point to it goes to an old invitation to comment from last year. My phone calls to various departmental functionaries went unanswered, and an email query met with no response by the time I submitted this column.) DM