Does the Constitution Call for the Criminalisation of Hate Speech?

Authors

  • Marelize Marais

DOI:

https://doi.org/10.25159/2522-6800/3589

Abstract

The clear-cut exclusion from constitutional protection of ‘hate speech’ contemplated by section 16(2)(c) of the Constitution is not per se concerned with the expression or promotion of hurtful or offensive discriminatory views, not even if intentionally aimed at disadvantaging the target group. Rather, it is concerned with the devastating human rights risk that irrational, cruel behaviour may be borne out of the hatred instilled in others by the inflammatory speech of reckless orators who advocate hatred. The article submits that existing legislative measures do not satisfactorily meet the responsibility to take necessary legislative measures to safeguard society against the realisation of this risk. It points out that while expression under section 16(2)(c) of the Constitution to a substantial extent falls within the ambit of existing criminal offences, in particular the common law offence of incitement to commit a crime, expression contemplated by section 16(2)(c) that incites others to inflict harm by means that do not constitute criminal offences, for instance, discrimination or the promotion of hatred, is prohibited under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, but not criminalised. Expression of this nature should be criminalised, but only when the inciting action or attitude will have the effect of victimising target groups to the extent that they are effectively prevented from exercising their constitutional rights, in particular their right to freedom of expression. An analysis of the Draft Prohibition of Hate Speech Bill, 2004 reveals that the Bill fails to provide appropriate protection. Taking into account the guarantees of the Constitution including the right to freedom of expression, international commitments, comparative law and, most significantly, relevant features of South African society, the conclusion is reached that the criminalisation of incitement to promote hatred on the grounds stipulated in section 16(2)(c), as well as on the additional grounds of sexual orientation and nationality, is indeed called for.

Metrics

Metrics Loading ...

Downloads

Published

2017-12-01

How to Cite

Marais, Marelize. 2015. “Does the Constitution Call for the Criminalisation of Hate Speech?”. Southern African Public Law 30 (2):456-83. https://doi.org/10.25159/2522-6800/3589.

Issue

Section

Article