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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a Freedom of Religion South Africa (FOR SA) Special Update Meeting, held at the Every Nation/His People Centre, N1 City, Cape Town, 15 February 2017

Good morning, and thanks again to the Executive Director, Michael Swain, and legal counsel, Nadene Badenhorst, for the invitation.

Let me start by thanking FOR SA for its submission on the draft Prevention and Combating of Hate Crimes and Hate Speech Bill.

I have studied your submission, and it is also with our Department for further consideration as we move forward on the Bill.

I want to thank FOR SA for commending our Department for what FOR SA calls “a bona fide effort to prevent and combat hate crimes and hate speech, and to create an environment where South Africans can peacefully co-exist despite our differences.”
This is indeed the intention.

I think many of you are aware of some of the truly abhorrent comments made on social media recently and you would agree that it is indeed something that we need to address – not only from the side of government, but also in society.

The FOR SA submission refers to some of the Bill’s provisions on hate crimes, but the main concerns relate to the hate speech provisions.

The submission argues that the hate speech component, is “defined so broadly that it will violate other constitutional rights, including particularly Freedom of Expression and Freedom of Religion, Belief and Opinion.”
With regards to freedom of expression, it must be remembered that hate speech is not free speech.

Furthermore, like all other rights, the right to freedom of speech must be balanced, in the same way that all constitutional rights are balanced.  No right is unlimited. A person’s right to dignity is surely just as important as another person’s right to freedom of speech.

FOR SA, in its submission, acknowledges that freedom of speech “must have some limitations – and it does.”  The submission makes mention of certain remedies, such as the laws against defamation, the common law crime of crimen injuria (wilful injury to dignity) and the Equality Act.

However, I must explain that these remedies are not ideal. The Equality Act for example allows for a civil remedy, not a criminal one.

Crimen injuria and criminal defamation are also problematic in the sense that they are common law offences. Are common law crime appropriate to deal with hate speech in South Africa in the 21st century?  They cover the infringement of dignity, but not the incitement to violence.

So there is a need for the legislature to set out, in statute, what hate speech is and how it is criminalised.

With regards to freedom of religion, opinion and belief, we value the views of our religious institutions and religious leaders and will look closely at the hate speech provisions in the draft Bill to ensure that religious preachers are able to preach their views freely, even though other people may find these views questionable.

This is something that our Constitutional Court has already acknowledged in the Prince v President of the Law Society of the Cape of Good Hope case, where the Court held that -
“Religion is a matter of faith and belief. The beliefs that believers hold sacred and thus central to their religious faith may strike non-believers as bizarre, illogical or irrational. Human beings may freely believe in what they cannot prove. Yet, that their beliefs are bizarre, illogical or irrational to others or are incapable of scientific proof, does not detract from the fact that these are religious beliefs for the purposes of enjoying the protection guaranteed by the right to freedom of religion.”

The Court continued by stating that:
“The right to freedom of religion is especially important for our constitutional democracy which is based on human dignity, equality and freedom. Our society is diverse. It is comprised of men and women of different cultural, social, religious and linguistic backgrounds. Our Constitution recognises this diversity.

This is apparent in the recognition of the different languages; the prohibition of discrimination on the grounds of, amongst other things, religion, ethnic and social origin; and the recognition of freedom of religion and worship. The protection of diversity is the hallmark of a free and open society. It is the recognition of the inherent dignity of all human beings. Freedom is an indispensable ingredient of human dignity.”

So, for religious preachers like Errol Naidoo of the Family Policy Institute to say things like - “Hate Crimes laws will therefore provide homosexual activists the legal mechanisms to declare the Scriptures hate speech and criminalise the Bible” are, with the utmost respect, just plain wrong.

We do not want to pass a Bill which falls short of the Constitution.
It’s only when a sermon includes an incitement to violence and harm that it will cross the line and become hate speech. If a person, like US pastor Steven Anderson recently, says that all gay people must be killed and uses a Bible verse to motivate it, that it will be regarded as hate speech.

We are fully cognisant of what our Courts have said regarding the freedom of religion and belief.  Having said that, it must also be remembered that the same Constitutional Court, in the Christian Education case, which dealt with corporal punishment, held that –
“…believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land.”

The Court also held that in the Lesbian and Gay Equality Project v Minister of Home Affairs case that:
“A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality.”

So, by all means preach what you believe, but do not cross the line into hate speech. If every religious leader in our country starts sounding like pastor Anderson it will not be tolerated in a constitutional democracy.
It really is all about balancing competing rights.

Also perhaps just on the broader issue of hatred and how hatred is experienced from different perspectives: the issue at the moment is how religious institutions feel when they are the ones expressing their views. 
But what if they were at the receiving end of the hatred?

For example, in January this year, Fox News Network reported that Christians continued to be the most persecuted group across the globe in 2016. It referred to an international report which found that 90,000 Christians were killed for their beliefs worldwide last year. The study also found that as many as 600 million Christians were prevented from practicing their faith in 2016.
Then two weeks ago, the same news network reported that in the past year, the persecution of Christians “not only increased, but it has also spread to more corners of the globe – with incidents occurring on every continent.” They quote a report undertaken by an advocacy group, Open Doors USA, which said the increase in incidents considered persecution was alarming and getting worse.

On our own continent, it is reported that the killing of Christians in northern Nigeria has increased by 62% in one year. Here in Cape Town we have recently seen two local Mosques defaced.
Only yesterday UN Secretary-General Antonio Guterres said that Islamophobia and Islamophobic hate speech in parts of the world is fuelling terrorism.

So the world seems to be becoming more intolerant of difference.
What if the shoe is on the other foot? What if people start attacking religious believers? What if people incite violence against Christians or Muslims or Jews? Must government sit with its hands tied and do nothing?
Would our religious institutions still be so dead-set against hate speech laws?
These are all questions that are part of the bigger debate that we must have in our country.

Finally, on the way forward, as you know the period for comment on the Bill closed at the end of January. Our Department will seriously consider all the inputs made before preparing a further draft which will then be put before Cabinet.
After Cabinet approval the Bill is then tabled in Parliament where Parliament undertakes a further public consultation and participation process to ensure meaningful consultation on the Bill.
So there will be ample opportunity for inputs to be given in the legislative process.

I think the real debate that we need to have as a country is whether we want to criminalize hate speech? If yes, then we need to look at the wording. Nothing is cast in stone at this stage and if we need to narrow the definition of hate speech in the Bill, we will do so.

Whenever we think of Einstein, we always think of physics, we think of the general theory of relativity, but Einstein also had some wise words on freedom of expression. He said:
Laws alone cannot secure freedom of expression; in order that every man present his views without penalty there must be a spirit of tolerance in the entire population.

With every freedom comes responsibility. With every human right comes a civic duty. With every expression of hatred comes a call for tolerance.

Thank you for your attention.