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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the North West Church Leaders Provincial Consultative Engagement, held at the Mocoseng Sundown Resort, Mahikeng, 21 January 2017

Good morning and thank you for the invitation.

I have been asked to share some thoughts with you on the partnership between the state and the church and also to discuss the new Prevention and Combating of Hate Crimes and Hate Speech Bill.

So what exactly is hate speech? And what is hate speech in a religious context?

I’m sure most you know who pastor Steven Anderson is. Pastor Anderson is from the Faithful Word Baptist Church in America and he is known for his hatred of homosexuals. After the June 12 terror attack at a nightclub in Florida that left 49 people dead, he said: “The good news is that there's 50 less paedophiles in this world, because, you know, these homosexuals are a bunch of disgusting perverts and paedophiles.”

Last year he wanted to visit South Africa, but government prohibited him from entering South Africa. Minister Gigaba, our Minister of Home Affairs, said that the Immigration Act prohibited the admission of foreigners likely to promote hate speech.

Perhaps the most shocking thing pastor Anderson said was: “I don’t condone violence, but gays should be executed.”

That’s what hate speech is – the intention to harm others.

What makes it more shocking is that these words were coming from somebody whose religion clearly states that we should love one another.

Does the Bible not tell us in the book of Mark, chapter 12 that “One of the teachers of the law came and heard them debating. Noticing that Jesus had given them a good answer, he asked him, “Of all the commandments, which is the most important?” “The most important one,” answered Jesus, “is this: ‘Hear, O Israel: The Lord our God, the Lord is one. Love the Lord your God with all your heart and with all your soul and with all your mind and with all your strength.’ The second is this: ‘Love your neighbour as yourself. There is no commandment greater than these.”

And Luke 10:27: “He answered, 'Love the Lord your God with all your heart and with all your soul and with all your strength and with all your mind'; and, 'Love your neighbour as yourself.’”

And Romans 13:9 “The commandments, "You shall not commit adultery," "You shall not murder," "You shall not steal," "You shall not covet," and whatever other command there may be, are summed up in this one command: "Love your neighbour as yourself.”

What does our Constitution say? 

Our Constitution guarantees both freedom of religion and freedom of speech. But these rights often need to be balanced against each other and this can result in their limitation. My right to freedom of religion sometimes needs to be balanced against somebody else’s right to dignity or their right to life.

There is still a lot of intolerance and prejudice in our country – not only on the basis of race and gender, but also on the basis of sexual orientation and on the basis of religion. For example, only two weeks ago a pig’s snout and pig blood were placed outside the door of the Simon’s Town Mosque. An Imam lodged a case of crimen injuria with the police and said it was an insult and shows total disregard and lack of respect to the Muslim community.

Religious intolerance is something we see world-wide: In a 2013 study of more than 100 news outlets, the World Association of Newspapers found that stories about religion were among the most commented on but that the quality of those comments was among the worst.

Some people may say but it’s just words. But we know that words can lead to violence. On our own continent, in Rwanda and Kenya, both countries have experienced considerable violence and hate speech played a significant role in those conflicts.

For example, in Rwanda, in the genocide, Radio RTLM would broadcast and say ‘the enemy is the Tutsi.” As one genocide survivor said: “If the radio had not declared things, people would not have gone into the attacks.”

Author Juliet Nanfuka writes that in Kenya, hate speech resulted from ethnic tensions. Hate speech became most apparent during the 2007 post-election period during which SMS’s fuelled conflict and violence. More than 1,200 people were killed in the aftermath of the elections. The March 2013 presidential elections saw the increased use of social media, including hate speech online. This resulted in the government enacting laws to control hate speech both online and offline.

Both Kenya and Rwanda now have hate speech legislation, very much like the Bill that we are working on at the moment.

Our new Bill states that any person  who intentionally, by means of  any communication whatsoever, communicates to one or more persons in a manner that advocates hatred towards any other person or group of persons;  or is  threatening,  abusive  or insulting  towards any  other  person  or  group  of persons, and which demonstrates a clear intention, having regard to all the circumstances,  to incite others to harm any person or group of persons, whether or not such  person or group of persons is harmed;  or stir  up  violence  against,  or  bring  into  contempt or  ridicule,  any  person  or group of persons, based  on race,  gender,  sex, which  includes  intersex,  ethnic  or  social  origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade, is guilty of the offence of hate speech.

“Harm” includes any mental, psychological, physical or economic harm.

A group of Durban Christian leaders have said publicly that they are afraid that the new Bill will criminalise preaching against homosexuality and immorality and that the Bill prejudices the church. They are concerned that sermons based on the Bible could be misinterpreted as hate speech.

I want to give you all the assurance that there is no intention whatsoever to criminalize the Bible or to undermine peoples’ rights to religious freedom. We will not pass a Bill that does not meet the requirements of the Constitution.

Furthermore, it is not the intention of the Bill to have persons prosecuted at every turn, in fact, any prosecution for hate speech must be authorised by the  Director  of  Public  Prosecutions  having  jurisdiction or  a person  delegated by him or her.

We want to ensure that the Bill does not constrain the preaching of the Gospel or constrain the quoting of certain Bible verses, as long as it does not cross the line and become hate speech. If a person, like pastor Anderson, whom I mentioned earlier, says that all gay people must be killed and uses a Bible verse to motivate it, it will be hate speech.

As a matter of interest, we could only find two incidents elsewhere in the world where anti-homosexual sermons were an issue. In 2013, the Canadian Supreme Court upheld the conviction of a Christian street preacher who was distributing leaflets denouncing homosexual acts. The court held that the man had used “vilifying and derogatory representations to create a tone of hatred” against gay people. The court determined that the pastor’s behaviour constituted “hate propaganda” and that his religious beliefs did not excuse him from violating the law.  But the court also narrowed the definition of hate speech by striking down some language in the province’s human rights code that it said were unconstitutional.

A Swedish pastor convicted of hate crimes for a sermon denouncing homosexuals as a "cancer" was acquitted by an appeals court that said he was protected by the country's free speech laws. Sweden’s hate crimes laws make it a crime to make inflammatory remarks against racial, religious or national groups. The laws were ratified in 2003 to include homosexuals. The Appeal Court said that while the pastor’s views of gays can be "strongly questioned," it was not illegal to offer a personal interpretation of the Bible and urge others to follow it. The court said that the purpose of making agitation against gays punishable is not to prevent arguments or discussions about homosexuality, not in churches or in other parts of society.

How does our own Constitutional Court deal with the issue of religious rights?

In Christian Education v Minister of Education in 2000 the issue was about the prohibition of corporal punishment in schools. The Constitutional Court found that it was important to balance rights. The Court held the following:

“There can be no doubt that the right to freedom of religion, belief and opinion in the open and democratic society contemplated by the Constitution is important.”

"The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such society can cohere only if all its participants accept that certain basic norms and standards are binding.

Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the State should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.

The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person’s dignity.

And, very importantly, the Court said that – “The Constitution ensures that the concept of rights of members of communities that associate on the basis of language, culture and religion, cannot be used to shield practices which offend the Bill of Rights.”

We in government value the views of our religious institutions.

For example, many of you will recall that when we passed the Civil Union Act, which allows for same-sex marriages, we put in a provision which says that certain marriage officers may object - on the ground of conscience, religion and belief - to solemnising a civil union between persons of the same sex, and that such marriage officers shall not be compelled to solemnise civil unions.

Religious groups may all consider themselves Christian, but not all have the same views – for example, some churches allow gay members, while others do not. Some allow for same-sex marriages, whilst others do not. What is important is that we look at what the Constitution says.

Government has called for comments on the new Bill and the period for comments closes at the end of the month.

I can assure you that we will consider all views and all comments received.  If we need to ensure there is greater clarity regarding freedom of religion then we will make provision for that.   After consideration of the public comments, the Bill will go back to Cabinet and then be introduced into Parliament where there will be further and more extensive opportunities for public comment.

I thank you.