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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the Hate Crime and Hate Speech Bill National Consultative Workshop with Migrants/Vulnerable Groups, hosted by the Foundation for Human Rights, held at the Protea Hotel, 120 De Korte Street, Braamfontein, 26 January 2017

Good morning, ladies and gentlemen, and thank you to the FHR for arranging this workshop on an important piece of new draft legislation.

Many of you here today are either foreign nationals or belong to civil society bodies which work closely with foreign nationals. Therefore many of you will have seen the latest messages circulating on social media regarding the alleged deportation of undocumented foreign nationals.

On Monday this week, our Department of Home Affairs replied by issuing a statement informing the public that the information going around on social media and via SMS was false.

Home Affairs reiterated that it acts consistently within the confines of the Constitution and that it would run contrary to the laws of our country to instruct citizens, as purported in the malicious messages, to take the law into their hands.

Citizens and all other persons in the country were strongly advised to ignore the false information that is seemingly seeking to fuel tensions in the country and the Department thus called for cooperation of citizens and stakeholders to ensure a safe and secure South Africa.

It was necessary to respond to these malicious messages because Government knows the real danger of false information.

The Report by the Special Reference Group on Migration and Community Integration in KwaZulu-Natal, chaired by Navi Pillay, and which was tasked to look into the causes and consequences of the 2015 violent attacks against foreign nationals in the province found that “unfounded rumours, misinformation, fake videos and images and exaggerated headlines spread through social media and some traditional media heightened anxieties throughout the province.

The Report continues and says that – “Social media networks such as WhatsApp, Blackberry Messenger, Facebook, etc. were used to spread exaggerated rumours that suggested a widespread purge of foreign nationals from the communities in KZN.”

So we know that words and expressions fuel hatred.

Hatred fuels violence.

It’s a phenomenon that we see in our own country, and also internationally. In the UK, data showed that just over 1500 racially or religiously aggravated offences were recorded in the two weeks up to and including the day of the Brexit referendum on June 23. But in the two weeks after the poll, the number shot up to just over 2200.

Likewise in the US, where the US has seen heightened attacks against Muslim Americans. FBI statistics for 2015 showed a 67% increase in hate crimes against Muslim Americans, while hate crimes against Jewish people, African Americans and LGBT individuals also increased.

And of course, we have seen increases in the manifestation of hate speech and hate crimes in South Africa. Very often we see it on social media. Names like Penny Sparrow, Velaphi Khumalo, Andre Slade, Matthew Theunissen, Dawie Kriel, Vicky Momberg and Vanessa Hartley have become familiar – for all the wrong reasons.

Hate can take many forms – it can be directed towards persons on the basis of their race, gender, sexual orientation, nationality, ethnicity, to name but a few.  In fact, the South African Human Rights Commission recently stated that 68% of equality complaints it had received in the period from 1 April 2015 to 29 February 2016 have been on the basis of race.

That’s why we need the new Bill. We have developed the Prevention and Combating of Hate Crimes and Hate Speech Bill which was approved by Cabinet for public comment in October last year.

The Bill creates the offences of hate crimes and hate speech and seeks to put in place measures to prevent and combat these offences.

A hate crime is committed if a person commits any recognised offence, that is a common law or statutory offence (referred to as the “base crime or offence”) and the commission of that offence is motivated by unlawful bias, prejudice or intolerance.   

The base offences most often committed against victims of hate crimes are offences relating to the physical and emotional integrity of the person, as well as offences against the property of the victims, for instance murder, attempted murder, rape, assault in all its various manifestations, robbery, housebreaking, malicious damage to property, crimen injuria and arson.

The prejudice, bias or intolerance towards the victim of the hate crime would be because of one or more of the following characteristics, or perceived characteristics, of the victim or the victim’s next of kin: Race, gender, sex, ethnic or social origin,colour, sexual orientation,religion,belief,culture,language,birth, HIV status,nationality, gender identity, intersex, albinism and occupation or trade.

Nationality, gender identity, HIV status, albinism, intersex and occupation or trade are not mentioned in section 9(3) of our Constitution - but it has been argued that they should be included in the Bill because of the hate crimes that have been committed on the basis of these grounds.

The Bill has been drafted after a thorough study of other similar pieces of international legislation, such as those in Kenya, Canada and Australia. Developing specific legislation on hate crimes will have a number of advantages.  It will provide additional tools to investigators and prosecutors to hold the perpetrators of hate crimes accountable and will provide a means to monitor efforts and trends in addressing hate crimes.

Many will ask we do we need new legislation, especially since the Equality Act (PEPUDA) has enabled government to establish Equality Courts in all magisterial districts. Why has the Equality Act not been sufficient to deal with these issues?

The short answer is that because PEPUDA, our Equality Act, has a civil remedy only.  The Equality Act prohibitions on unfair discrimination and hate speech are civil only.

Although the Equality Act contemplates that such conduct may constitute crimes “in terms of the common law or relevant legislation” and “must be regarded as an aggravating factor for the purposes of sentence”, it contains no provision itself specifically criminalising either unfair discrimination or hate speech, nor does it establish any new offences that may be described as “hate crimes”.

We are certain that the new Bill will complement existing measures such as the Equality Act to combat the social ills of racism, xenophobia and related intolerances.

From the comments received thus far on the new Bill, there seems to be broad support for the inclusion of hate crimes.

Hate speech, on the other hand, is somewhat more challenging, with many different views on the matter.

Some claim that it will restrict their rights to free speech. We must remember that hate speech is not free speech. Yes, freedom of speech is a fundamental human right, but like all other human rights, it can be limited by way of the limitations’ clause. When can it be limited? When it crosses the boundary and becomes hate speech.

This limitation was also thoroughly expressed by the Constitutional Court’s pronouncement in a matter between the State v Mamabolo that freedom of expression is not to be afforded any primacy over any other constitutional rights, including dignity.

According to the court, freedom of expression -“... is not a pre-eminent freedom ranking above all others. It is not even an unqualified right.”

According to media reports the Muslim Judicial Council (MJC) is urging communities to submit their comments on the prevention and combating of Hate Crimes and Hate Speech Bill. The MJC is calling on all to get involved, in light of recent incidents in which two mosques were defaced in Simons Town and Kalk Bay.

On the other hand, some churches have voiced their concern and have argued that the Bill will “criminalize the Bible”.

I can assure everyone 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.

We all know what happened at the Grace Bible Church this weekend. According to reports a guest pastor, Bishop Dag Heward-Mills, was invited to the Grace Bible Church to deliver a sermon on a variety of issues‚ including homosexuality. Pastor Heward-Mills allegedly described homosexuality as “sinful”‚ “unnatural” and “disgusting”. His homophobic views angered Idols judge Somizi Mhlongo‚ forcing to him to leave the service on Sunday. Mhlongo later took to social media to express his anger.

Is describing homosexuality as “sinful” a form of discrimination or is it hate speech or is it both?

Our new Bill, as its currently worded, 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.

Some commentators feel that the definition is too wide and propose that we delete the issue of “contempt” and “ridicule” from the definition. In other words, it will be hate speech only if it incites harm. This is, of course, but one of the many proposals that we will have to consider when finalising the Bill.

The Bill may be accessed on the departmental website: www.justice.gov.za and I really want to encourage everyone – both interested bodies and individuals – to make inputs before the closing date of 31 January.

As for as the protection of the rights of migrants and LGBTI persons is concerned, the new Bill, in isolation, is not enough to prevent discrimination and prejudice against these groups. The Bill is but one part of broader government initiatives.

With regards to foreign nationals, it must be stressed that foreign nationals enjoy all rights enshrined in our Constitution except for certain specific rights such as political rights.

Attacks on internal and external migrants experienced in the past and, recently in 2015, resulted in the loss of lives and damage to property. Government strongly condemned such attacks and our law enforcement agencies moved in to contain such attacks and avoid a spread to other parts of the country. 

The work to assist in ensuring that peace and order in our communities is restored and maintained is now coordinated at the highest level.

President Zuma convened meetings of stakeholders in South Africa to discuss the country’s migration policy and how various sectors can work with government to promote orderly migration and good relations between citizens and other nationals. The first such meeting took place in April 2015.  

The issues related to violence and discrimination with respect to integration status of people are further addressed through three main Inter-Ministerial Committees. These IMCs are – The Inter-Ministerial Committee (IMC) on Migration, the IMC on Social Cohesion and the IMC on Population Policy.

The vision that government is proposing, is one which holds that South Africa should embrace international migration for development. The Green Paper on International Migration (2016) contends that it is neither desirable nor possible to stop international migration. International migration is a natural, largely positive phenomenon – which if well managed – can, does and will make a crucial contribution to growing our economy and transforming Africa as envisioned in Agenda 2063.

With regards to LGBTI persons, the work being done by our National Task Team and its Rapid Response Team is well-known and is a shining example of a solid partnership between government and civil society.

Ladies and gentlemen, hate has no place in South Africa. We’ve experienced enough hatred and prejudice in colonial times and under apartheid.

The Constitution guarantees freedom, equality and human dignity. We must put in place measures and initiatives that send a clear signal that racism, discrimination and prejudice will not be tolerated. We must put in place measures and initiatives that foster understanding, awareness and respect for human rights. 

I thank you.