As I grow older, I have become more sceptical of the power of legislation to undo systemic forms of oppression and social and economic injustice. It is true that the law can sometimes provide relatively quick relief to individuals who have been wronged by somebody else – if those individuals have access to the requisite resources, of course.
Section 4 of the new Bill would change that.
Second example. Imagine that a white man criticises the leader of the Economic Freedom Fighters and points out that Malema still faced possible prosecution for corruption, fraud and money laundering relating to government contracts his political allies secured in Limpopo. In response, an EFF supporter then tweets: “Go back to Europe, you bloody settler. You whites stole the land so you must shut up. No matter what you say, we are coming for your land.
Some of these examples illustrate a further problem with the Bill. As it currently reads, it does not take account of the fact that the impact of hateful speech on those who have suffered and continue to suffer from patterns of disadvantage and harm, will be far more severe than on those who are politically, socially and economically privileged and are not systematically subjugated because of their race, gender or sexuality.
This may potentially limit the possible impact of the crime of hate speech, but this may itself be a problem because it would grant almost unlimited discretion for prosecutors to decide when to prosecute and when not. The principle of legality requires legislation that creates criminal offences to be clear and precise.
If section 4 as it now reads had been passed at the time this happened, every single person who distributed the video or quoted from the video on Facebook, Twitter or WhatsApp may well have been guilty of a criminal offence. Section 4 is phrased in such a way that the state would not have to prove that you had the intention to promote hate speech when you distributed it, but only that you had the intent to distribute the hate speech .