The Church and the Press are two fundamental pillars of civil society that stand for freedom of speech.
Our recent history is a clear example of the important role that the Church and the media played in the struggle against Apartheid.
In fact, at one stage the Church was the almost the only voice left because of the censorship imposed on the Press by the apartheid regime.
It is with this fundamental belief in freedom of speech that the Church questions the need to draft extra legislation by the Department of Justice and Constitutional Development that could become draconian in its application because of the inability to define hate speech.
Church leaders, in general, believe that existing legislation is sufficient and can deal effectively with hate speech issues through the Equality Act and the common law crime of crimen injuria (wilful injury to someone’s dignity).
The reality of freedom of speech is that there are few rules, if any, as to what you may say. We can bless people or curse people with our words. The author George Orwell said: “If liberty means anything, its means the right to tell people what they do not want to hear.”
This does not mean that we condone vile, obscene, insensitive and hurtful ranting. Outbursts of that nature are unpardonable. However, there are false claims being made in the name of hate speech that are perceived, by some, as a deliberate attack on religion and in particular the Church.
One of the concerns about the proposed Hate Crimes and Hate Speech Bill is that it could become a means to regulate speech and stifle the public voice of the Church
The proposal to criminalise hate speech may be meant for good, but fails to address the issue of, “is it right.” For example would a pastor be criminalised for criticising so-called gay marriages? The pastor is teaching from the bible, which he believes is the truth.
The question is: who is right and who is wrong? This is about beliefs and truth, an area that the State has no jurisdiction over and therefore cannot legislate on matters of belief or seek to define what is true.
The proposed wording of the bill could lead to a dangerous erosion of free speech that could be exploited by special interest groups as well as the State to curb critical Press comments on government policies.
The result could lead to the silencing of the public voice, including the freedom of speech treasured by the Church and the media.
The effect of the excessively broad definition of hate speech in the bill is that virtually any speech could potentially be offensive, and could qualify as “hate speech” punishable by a fine and/or up to three years’ imprisonment for a first offence and up to 10 years’ imprisonment for a repeated offence (section 4(3) of the Bill).
By contrast, section 16 of our Constitution guarantees the right to freedom of speech. This constitutional guarantee is a recognition that we live in a pluralistic society where people, who hold diverse beliefs and views on matters, should be free to express their views openly and without fear of punishment.
Freedom of speech means that we need to be willing to tolerate views that are different to our own – even views that we may find to be personally offensive, disturbing or shocking. In attempting to criminalise certain expressions of speech and opinions could in essence lead to the doing away of the right to be different.
The proposed bill blurs what is deplorable speech and criminal behaviour. The consequence could be that freedom of speech would be suppressed because of fear of someone taking offence at something said and then filing a criminal complaint with the authorities.
True democratic freedom demands individual freedom. Civil society cannot be truly free unless they are able to say what they believe and to live according to their beliefs, freely and without fear of harassment or punishment by the State.
Religious convictions and beliefs should be respected and accommodated, not suppressed or punished. No one should be forced to choose between obeying their conscience and obeying a law that denies them the basic human right to practise the religion of their choice.
Should the bill be passed in its current form, this is exactly the negative consequence that this Bill will achieve.
All citizens should be treated equally and fairly under the proposed bill. The danger under the loose terms and lack of definitions leaves the bill open to abuse by groups that wish to silence the Church and other faiths because of conflicting moral beliefs.
It is unfair and unjust to give special privilege to certain groups to challenge religious institutions because they disagree with the moral and ethical teachings of the Church.
The reality is that one cannot legislate an end to ignorance, prejudice and bigotry because it will not change hearts or minds.
However, the Church and other religions as well as the Press, the very instruments of civil society that could be adversely affected by the proposed bill, can be positive role players in changing hearts and minds.