This bill is therefore the antithesis of the foundational and fundamental principles upon which any democracy worthy of the name is built and sustained. Photo: iStock
As the new hate crimes and hate speech bill closes for comment on Thursday, Daniela Ellerbeck writes that the problem with trying to silence viewpoints that we neither like nor want is that we simultaneously stifle the flow of information and ideas.
The Constitution (in Section 15) expressly entrenches the “right to freedom of conscience, religion, thought, belief and opinion”. By explicitly protecting thought and, even, opinion the Constitution protects more than just formal religion.
Voicing our thoughts and opinions in the public realm are protected twice over by our Constitution – by the Section 15 right to religious freedom and the Section 16 right to freedom of expression (the latter expressly includes the “freedom to receive or impart information or ideas”). Evidently, enshrined rights make no sense if we were only entitled to them in the inner sanctum of our home and not in the public realm. It is, therefore, submitted that the crux of enshrining rights is ensuring they are protected in the public realm.
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South Africa’s public life was never meant to be sanitised or secular, but a place where everyone can voice their beliefs, thoughts and opinions. This will obviously result in a multitude of diverse opinions in the public realm – should we silence some we don’t agree with? At this juncture, it is important to point out that the right to equality includes (and arguably its very crux is) the full enjoyment of all rights and freedoms equally by everyone – even those we disagree with.
Tolerance of views over silence
This will naturally result in a public realm that is full of diverse and pluralistic thoughts, opinions and beliefs. This will require us, as South Africans, to be tolerant of those we disagree with and allow them to express themselves in the same public realm we express ourselves in. We cannot relegate people to the margins of society because they do not or cannot conform to certain social norms.
Equality, after all, does not presuppose eliminating or suppressing difference, but equal concern and respect across differences. It requires us to act positively to accommodate those different to us.
So no, we should not silence those we disagree with. Rather, we should tolerate them. Tolerance is giving reasonable space to what we disagree with. In fact, the type of tolerance that is envisaged by the Bill of Rights does not mean we accept what is familiar and easily accommodated by us, but it is the type of tolerance that requires us to give reasonable space to what is unusual, bizarre or even threatening to us.
In other words, it is not tolerance when we find space in the public realm for people and practices with whom we feel comfortable, but when we accommodate those expressions that are (perhaps even extremely) uncomfortable to us to allow those people to also participate in the public realm. Requiring people and institutions to reasonably accommodate different worldviews to theirs in the public realm is part of celebrating diversity. This is the essence of being inclusive.
To ask for the public space to be sanitised so that you are never confronted by anything that you find offensive or even “unusual, bizarre or even threatening” is not tolerance, it is bigotry.
As so beautifully written by former Constitutional Court Justice Albie Sachs: “[i]ntolerance may come in many forms. At its most spectacular and destructive it involves the use of power to crush beliefs and practices considered alien and threatening” – what he termed as “aggressive targeting”.
No one is safe
This brings us to the Prevention and Combatting of Hate Crimes and Hate Speech Bill, which is currently in its final stages before Parliament – and also one of the most controversial pieces of legislation since the advent of South Africa’s democratic dispensation where we left our apartheid past – with its censorship, thought control and its imprisonment for speech it thought undermined the South Africa it wanted.
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The bill proposes criminalising speech it sees as hate speech. The bill defines hate speech very broadly, including speech that undermines the social cohesion in South Africa (harkening back to apartheid) and that someone might think is hateful. Of all its numerous failures, the hate speech bill’s failure to define hate is perhaps the most ironic. It will also capture private expressions in its reach – i.e. you might face up to eight years in jail for a conversation that took place around your kitchen table.
The bill attempts to give some protection to the press and artists, but because of the bill’s wide definitions of harm or undefined hatred, these protections nullify themselves. No one is safe.
The problem with trying to silence viewpoints that we neither like nor want is that we simultaneously stifle the flow of information and ideas. Effectively, we hamstring our own freedom of thought, cutting ourselves off from the opportunity to learn, engage and challenge. This bill is therefore the antithesis of the foundational and fundamental principles upon which any democracy worthy of the name is built and sustained.
Like an atomic bomb, it will spare no floor of the building of public life from obliteration. Enter George Orwell’s “Ministry of Love”, exit our hard-won freedom.
– Daniela Ellerbeck is an attorney of the High Court of South Africa and heads up FOR SA’s legal department.
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