Government critics could be jailed under new Hate Speech Law…

The new Hate Speech Law could see critics of government policy on social media prosecuted and jailed – if their criticism is deemed to cause emotional or psychological harm to government officials or supporters. This is the warning from Ismail Joosub, the Legal Officer of Constitutional Programmes at The FW De Klerk Foundation, and a candidate MP for ActionSA. “The threat of imprisonment that the Act brings with it for expressing what it deems harmful speech will certainly deter individuals from speaking out about wrongdoing, undermining efforts to combat corruption and protect democratic values.” He says numerous rights in the Constitution – including the right to freedom of speech – are being “significantly violated” by the new law. It is now going to take a direct Constitutional Court challenge to get  “this unconstitutional law to be struck down”.

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Extended transcript of the interview ___STEADY_PAYWALL___

Chris Steyn (00:01.51)

The new Hate Speech Law has set alarm bells ringing. We speak to Ismail Joosub of The FW De Klerk Foundation. Welcome Ismail.

Ismail Joosub (00:11.438)

It is a singular honor and distinct privilege to be here and I am greatly looking forward to our discussion today.

Chris Steyn (00:20.934)

Thank you, Ismail. May we start by you enlightening us in terms of this new law, what could see people jailed?

Ismail Joosub (00:29.934)

Right, absolutely. But I think an important question to ask is where do we stand currently? What is this Hate Speech Bill or rather should I say what is the Hate Speech Act? I think a lot of people are not entirely certain of what this legislative measure really is. So President Cyril Ramaphosa has signed into law the Hate Speech Bill, now making it an act. And it’s designed, it claims to address hate crimes and hate speech in South Africa. 

I have to say the act is officially titled the Preventing and Combating of Hate Crimes and Hate Speech Act. It was first introduced in 2018 and passed by Parliament in December after revival from the sixth Parliament in 2019. So essentially to answer your question this legislation aims to prohibit offences of hate crimes and hate speech and prosecute individuals committing these offences.

And he claims that by doing this, it would align with South Africa’s constitutional values of human dignity and equality and human rights. That’s what he claims. We have a different view. It also claims that in prosecuting these crimes, that it would be fulfilling the country’s obligations under international human rights instruments. We have a different view. 

So under the act, hate crimes are defined as offenses that are motivated by prejudice or intolerance based on certain characteristics of the victim or their association with individuals possessing these characteristics. 

Hate speech, on the other hand, encompasses intentional communication that either promotes or propagates hatred. And I’ll delve into that. Hatred based on defined grounds. It does exclude actions conducted in good faith during engagement. 

And now to touch on the criminal sanction for that. Well, the law provides enforcement measures, including directives on training for law enforcement agencies and the National Prosecuting Authority, and includes an imprisonment term of up to five years for committing the crime of hate speech. So some proponents argue in favour of the bill. They argue that this act or law rather is now crucial to combat racism, homophobia and other forms of discrimination. That’s why the bill was brought before Parliament in the first place, but opponents of the bill, including the DA, including the Institute of Race Relations, including us as The FW De Klerk Foundation, we have raised concerns about its potential infringement on specifically the freedom of expression enshrined in section 16 of the Constitution and other rights like religious rights. We view it as being overly restrictive and lacking in definitions and having overly broad definitions that could potentially stifle legitimate democratic discourse.

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Chris Steyn (03:35.238)

I was just going to ask you what impact could this law have on freedom of speech?

Ismail Joosub (03:42.158)

Absolutely. So there are numerous consequences of the bill. Now I have to say that it’s ironic that this bill was introduced in the first place because there indeed exists less restrictive means of carrying out this bill’s objectives. We have, for instance, the Promotion of Equality and Prevention of Unfair Discrimination Act, what’s called the PEPUDA Act. And we also have other civil remedies for dealing with hate speech.

But what this bill or what this act now does is it significantly escalates penalties, including that five-year imprisonment term that I’ve spoken of. 

And we’ve cautioned that the bill’s broad definitions and subjective criteria for harm, for the term harm in this act, could lead to the consequence of self-censorship stifling open dialogue and limiting individuals’ ability to express their opinions freely.

I have to also say here that the potential impact that this act has extends beyond just individuals. I want you to imagine what this act would mean for media outlets, for internet platforms, for whistleblowers. I mean, you can just imagine the chilling effect on whistleblowers whose protected speech is essential for exposing corruption, for safeguarding democracy. 

Now this…the threat of imprisonment that the Act brings with it for expressing what it deems harmful speech will certainly deter individuals from speaking out about wrongdoing, undermining efforts to combat corruption and protect democratic values.

Now, the bill, or the act, I have to say, as mentioned, does include certain exemptions for artistic or academic or religious expression, but we at The FW De Klerk Foundation are of the strong view that the Act’s draconian limitations and circular definitions will still impede citizens’ right to free speech and meaningful participation in public discourse. And furthermore, by driving hate speech underground, because that’s what this Act does, it doesn’t eliminate hate speech altogether, it would simply just drive hate speech underground, the Act will exacerbate social tensions and certainly won’t address those efforts to combat racism and xenophobia effectively. 

I have to also just lastly mention here the inclusion of overly broad and subjective, not objective, but subjective criteria in the act such as emotional, psychological, physical, social or economic detriment that if you act out against would be classified as hate speech or a hate crime significantly raises concerns about its potential negative consequences like arbitrary interpretations. We’ve already seen hate speech being selectively applied in certain cases and not in others. I can mention there that the South African Human Rights Commission has been particularly inactive in calling to account Julius Malema’s Kill the Boer speech as hate speech. 

Now I want you to also just imagine, before my answer gets too long, a situation, a scenario, where an individual expresses criticism of a government policy on social media. Under the provisions of this act, if this criticism is deemed to cause emotional or psychological harm to government officials or supporters, that individual could face those criminal charges, that five-year imprisonment. And this would not only undermine the individual’s right to express dissent, but would also then deter others from engaging in meaningful discourse. Or just maybe consider an instance where a journalist investigates and reports on corruption within a powerful corporation. If the corporation perceives this reporting as causing economic harm by damaging its reputation and thus its profits, they could use the provisions of this new act to silence a journalist through legal threats and intimidation. So to conclude on that answer, the broad and ambiguous language of the Hate Speech Act really opens the door for abuse and censorship and is out of line with what should be expected in a democratic society.

Chris Steyn (08:11.302)

Now, what now? Is there any way back from this? Can this law be challenged on the basis that it is possibly unconstitutional?

Ismail Joosub (08:19.95)

Yes, absolutely. Now I have to mention that when you have a bill in front of Parliament, you have MPs, you have members of Parliament that either vote in favour or against the bill. And so as NGOs,  FW De Klerk, as an NGO, The FW De Klerk Foundation is very proactive in trying to lobby MPs into not voting for the bill or suggesting amendments to the bill or participating in public participation as is required by sections 59.1 and 70.1 of the Constitution, but the time for that has passed. This bill has now been signed as an act of law. Alternatively, what could have happened potentially was if the President was not satisfied with the bill when it landed on his desk, he could have sent it either to the Constitutional Court or simply back to Parliament until a more satisfactory version or rather, let me say a more constitutional version of this bill would have landed on his desk, but the time for that has passed. 

So where to from now? Well, one of the things that can be done is to institute a direct Constitutional Court challenge. And this happens when individuals or organisations directly challenge the constitutionality of this law in the constitutional court. And this typically involves alleging that the law violates rights guaranteed in the constitution. There are numerous rights in the Constitution that are being significantly violated by the new Act, including the right to freedom of expression, section 16, human dignity, section 10. Furthermore, because I mentioned earlier that there are less restrictive means of achieving this bill’s ostensive purpose, the limitation of the right to freedom of expression in section 16 does not meet up to the limitations test set out in section 36 of the Constitution. And so that’s why this bill is simply unconstitutional.

And while the bill I mentioned in the introduction aims to align with international standards, it clearly does not because it doesn’t incorporate a number of international instruments like the Rabat Plan of Action. And so it’s also unconstitutional in terms of Section 39 of the Constitution. So to answer your question, well, the way to go from here is to institute a direct Constitutional Court challenge whereby the Constitutional Court can then order this unconstitutional law to be struck down.

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Chris Steyn (10:48.198)

Now, Ismail, this is not the only law that President Cyril Ramaphosa has signed, not the only bill President Cyril Ramaphosa has signed into law in the weeks leading up to the election. Do you attach any significance to the timing?

Ismail Joosub (11:06.126)

Yes, absolutely. And I have to also just touch on that there have been not just a number of draconian bills being passed. I mean, I can mention the Expropriation Bill having been recently passed. I can mention the NHI bill, which today will be signed into law as an act of law. And one has to let one’s mind wander as to the suspicious timing of signing the Hate Speech Bill into law as the Hate Speech Act and the NHI Bill into law as the NHI Act now. 

And I can only chunk it down to, well, one political motivation. I think the timing suggests that the President or in this instance, maybe the ruling party is seeking to push through legislation before the end of their term, especially with the very uncertain election just around the corner whereby the ANC might not get the majority that it would need in Parliament to pass these types of bills in the next session of Parliament.

But I think also what it relates to is a lack of transparency. When bills are signed into law during the final stages of a parliamentary term, great doubts arise over the transparency and accountability thereof. I mean, critics often argue that there’s insufficient time for proper scrutiny of the bill. Public participation is often undermined or thrown under the bus. 

Also, I think you might be looking at an impact on opposition where opposition parties feel disadvantaged by the timing because they would have not had adequate opportunity to review and challenge the proposed legislation. As I mentioned, we as NGOs wouldn’t have sufficient opportunity to lobby members of Parliament in challenging legislation. 

But I think the broader issue here is that by signing bills into law just before an election, it directly impacts on voter perception. I think that voters have to realise or voters have to see it as evidence of leadership that has not been decisive, that has waited for the last moment to proceed with signing bills into law so that there can be as little opposition as possible in challenging these draconian pieces of law.

Ismail Joosub (13:28.686)

And I think also it relates to the legal validity of these bills, because when bills are signed into law shortly before an election, necessarily a proper investigation of the validity of the legislation from a legal perspective are often not taken into account. And many of these bills that are signed into law are plagued with procedural irregularities that violate the Constitution. And we’ve seen that, for instance, with the Expropriation Bill.

Chris Steyn (13:55.846)

And you are speaking here not only from a legal point of view on behalf of The FW De Klerk Foundation, but also from a political point of view as you could be heading to Parliament soon.

Ismail Joosub (14:06.51)

That is true. In full disclosure, I have to let the audience know that not only am I the Legal Officer of Constitutional Programmes at The FW De Klerk Foundation, but I also am standing for a seat in Parliament through ActionSA. I’m ranked 11th on the national list for Parliament and number one in the Mpumalanga region. So yes, I speak with both hats on from both a legal and political perspective, but I have to say that my views at the foundation are completely objective and rooted in the constitutionality of these laws.

Chris Steyn (14:41.734)

Thank you. That was Ismail Joosub of The F.W. de Klerk Foundation speaking to BizNews about the new Hate Speech Law and the chilling consequences it could have for South Africans. Thank you very much, Ismail. I’m Chris Steyn.

Ismail Joosub (14:58.67)

Thank you.

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